Agenda packet — Upland City Council, September 12, 2022 (part 3 of 3)

4 11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
(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 Contractors 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.

Page 21 of 33 ends

5 (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
(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 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. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:

Combined Single Limit
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

Page 22 of 33 ends

6 Employer’s Liability $1,000,000 per accident or disease 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. f. 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.
g. 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

Page 23 of 33 ends

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.
h. 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.
i. 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.
j. 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 subcontractors or subconsultants.

Page 24 of 33 ends

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. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

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 $1,000 or more, 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 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). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable “public works” or “maintenance” project, 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. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

Page 25 of 33 ends

9 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 aliens, 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. Reserved

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 San Bernardino, State of California. 17 Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) 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. 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 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 for unperformed services and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
18 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.

Page 26 of 33 ends

10 19. Organization
Consultant shall assign Kevin Ko to serve as the Project Manager while, James Ross will serve as Principal-in-Charge and backup Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

20. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

21. 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:

DISTRICT:

City of Upland
460 N. Euclid Avenue
Upland, CA 91786
Attn: City Manager
CONSULTANT:

Interwest Consuting Group,
a SAFEbuilt Company
1500 South Haven Avenue
Ontario, CA 91761
Attn: Paul Meschino

and shall be effective upon receipt thereof.

22. 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.

23. 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.

24. 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

Page 27 of 33 ends

11 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.

25. Severability
The unenforceability, invalidity, or illegality of any provision(s) of this Agreement shall not render the remaining provisions unenforceable, invalid or illegal.

26. 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.

27. Non-Waiver
None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing.

28. Time of Essence
Time is of the essence for each and every provision of this Agreement.

29. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.

30. 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.
[SIGNATURES ON FOLLOWING PAGE]

Page 28 of 33 ends

12 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN CITY OF UPLAND

AND CONSULTANT

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF UPLAND Interwest Consulting Group

By: By:

Michael Blay
City Manager Its:

Printed Name:

ATTEST: And By:

By: Its:

Keri Johnson
City Clerk
Printed Name:

APPROVED AS TO FORM:

By:

Stephen Deitsch
City Attorney

Page 29 of 33 ends

13 EXHIBIT A
Scope of Services

The consultant’s scope of work includes, but is not limited to, all items identified in the City’s Request for Proposal (RFP) dated June 2, 2022, and Consultant’s Proposal dated June 21, 2022 Project Management Services and shall include, but is not limited to, the following Tasks and Duties:
• Accurately understand the details of City, State and Federal contractual and funding processes.
• Develop an accurate scope of work outlining agency requirements and needs while ensuring strict adherence to code and funding compliance. • Accurately analyze vendor proposals for proper scope, experience, and budgetary items to ensure the city is getting best value. Assist in the selection of consultants to prepare master plans.
• Review and confirm time estimates and project costs based on city requirements and general practice.
• Coordinate between consultants and city to ensure city satisfaction and minimize public inconvenience. This includes contract management, scheduling weekly or biweekly meeting coordination, reporting of progress, field issues, after-hours work, progress updates, submittals, and change request management.
• Work with consultants to develop projected schedules that accurately reflect the required time for each milestone in the overall requirement.
• Ensure projects stay on-time and on-budget through oversight and quality control methods.
• Navigate city through complex technical, contractual, or regulatory issues. • Provide creative solutions to help lower costs or meet project objectives. • Provide documented inspections or field observations on all work being performed, supplies needed, or equipment used for the data collection. • Liaise with and provide advice to city staff and administration regarding the projects. • Provide regular reports and progress updates to the city as required • Present to and attend meetings of management and City Council and/or Committees as required
• Issue Request(s) for Proposals for all master plan contract work and conduct any tendering necessary to complete the projects in accordance with city’s policies, and with industry standards.
• Responsibility for management of master plan projects, including all matters related to health and safety and site security.
• Obtain required permits, certifications, inspections, etc. as required by applicable codes and laws.
• Set, manage and control costs and schedules to ensure that the project cost and schedule objectives outlined in the RFP bid are met.
• Prepare periodic project progress/status and cost reports for review • Oversee, schedule, and manage all consultants involved in each project • Manage deficiency correction, contract close-out, and the project wrap-up

Page 30 of 33 ends

14 EXHIBIT B
Schedule of Charges/Payments

Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials contract based on the rate schedule below.

The billing rate for the Project Manager will be at $190/hr. Any support staff or additional personnel working on assigned projects will be billed at the rate shown in the attached schedule.

Page 31 of 33 ends

Page 32 of 33 ends

PROFESSIONAL ENGINEERING FOR LOCAL ROAD SAFETY PLAN SERVICES

CONSULTANT CRITERIA RATING FORM
FIRMS

AVERAGE

SCORE FINAL RANK
CAV CONSULTANTS 82.30 3.00
CSG CONSULTANTS 77.00 6.00
INTERWEST 89.30 1.00
LADAYU CONSULTING GROUP 75.30 7.00
PROJECT PARTNERS 81.00 5.00
TKE 89.00 2.00
TRANSTECH 81.30 4.00

EVALUATION CRITERIA

QUALIFICATIONS

TECHNICAL EXPERIENCE

REFERENCES

METHODOLOGY
COSTS

SUPPORTING STAFF

FIRM QUALIFICATIONS

UNDERSTANDING

PSA EXCEPTIONS
REVIEWED BY: Criteria Rating Page 1 of 1 07/12/2022Page 33 of 33

S T A F F R E P O R T
I T E M N O . 10.U .

D A T E :S ep tem b er 12 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : B R A D E N Y U, P U B L I C W O R K S D I R E C TO R

J O H N R O B L E S, A C T I N G U T I L I T I E S M A N A G E R S U B J E C T :A W A R D P R O F E S S I O N A L S E R V I C E A G R E E M E N T F O R T H E

P R E PA R A T I O N O F A W A T E R A N D R E C Y C L E D W A T E R M A S T E R

P L A N

R E C O M M E N D E D A C T I O N
I t is rec om m en d ed th at t he C it y C oun cil award a p rofes si on al service ag reem ent w it h B row n and C al d wel l for p rep aration of th e 2 02 3 W ater an d Recycled Wat er S yst em M aster P l an in the am ou nt of $4 3 9 ,8 7 8 ; ap p rove an ad d i ti on al al loc ati on of fu n d s in t he am ou nt of $1 39 ,87 8; and authorize th e C i ty M an ag er t o execute th e ag reem en t an d an y fu t u re am en d m en t s w ithin th e C ity M anag er's au th ority.

G O A L S T A T E M E N T
Th e p rop osed ac ti on su p p ort s the C ity's ob jecti ve t o m ain tai n an d im p rove t he C i ty's p ub lic alley and sewer facilities

B A C K G R O U N D
Th e m ost recen t Water System M as ter P lan (W M P ) w as last u p d ated in 2 01 0 an d t h e p reviou s Recycled Water M aster P lan (R W M P ) was com p leted in 20 08 .

I S S U E S /A N A L Y S I S
At this tim e an u p d ate to th e citywid e water an d recycled w ater m aster is need ed .

Th e C ity’s g oal is to create a com p rehen sive up d ate to the cityw id e w ater and recycled water m aster p lan that will inclu d e an up d ated G I S -b ased hyd rau lic m od eling system and m ap p in g tools. Th e d ocum ent an d t he n ew m od el in g s yst em will b e a g u id e for p lann in g , op eratin g ,

Page 1 of 28 ends

and m ai n t ain in g th e C it y’s w ater an d rec ycl ed w ater s yst em s an d in frastructu res. Th e p roject w ould eval u at e t he C ity’s w ater s yst em and id en tify rec om m en d ed w ater syst em cap ital im p rovem en ts. A s t h e C it y’s w at er i n frast ru ct u re ag es , it is crucial to id en tify th e need ed system im p rovem en ts , with p articular at ten ti on to th e con d i ti on and op erati on of existin g reservoirs, p u m p s tat ion s, and wells, an d al lowi ng sufficient tim e to p l an, fin ance, an d con stru ct th e im p rovem en ts.

O n M ay 4, 20 22 , th e C it y p ost ed on its web site and s en t t o local firm s a Req u est For P rop osal (R F P ) for th e p rep aration of a W ater and Recycled Water System M aster P lan U p d ate. T he C ity received five p rop osals b y the d ead lin e of J u ne 2 0, 2 02 2. T he p rop osals were review ed and g rad ed as d escrib ed i n the R F P b y a p an el of C i ty st aff. T he C i ty staff p an el ran ked the p rop osals th en averag ed the ranki ng s (s ee Ran kin g Res ul ts ) an d interview ed t he t op two firm s. A fter the interview s, the top firm w as B rown and C ald well.

B row n and C ald w ell 's b ase p rop osal was $35 7,1 52 b u t al so p rovid e valu e ad d ed op ti on al tasks as listed b elow.
• D S S D em an d Tool $22 ,29 6
• S tory M ap $1 9,7 84
• Recycled Water H yd raulic M od el U p d ate $22 ,41 6 • A s-N eed s S up p ort S ervices $1 8,2 29
I f all the op tional tasks were in clud ed , the total con tract p rice w ould b e $4 39 ,87 8.

F I S C A L I M P A C T S
Th e C it y C ou nc il ap p roved a C ap i tal I m p rovem en t P rog ram b u d g et for F is cal Year 2 02 2-2 3 in th e am oun t of $3 00 ,00 0 un d er ac cou n t nu m b er 64 0-7 50 0-9 10 05 for th e W ater an d Recycled Water S yst em M ast er P lan U p d ate. A n ad d it ion al al locati on from fu n d b alan ce in fu n d 6 40 for th e am oun t of $1 39 ,87 8 is req u ired to m eet th e con tract p ri ce of $4 39 ,87 8 th at in cl u d es the op tion al tasks as recom m en d ed b y staff.

A L T E R N A T I V E S

1. Aw ard th e p rofessional servic es ag reem en t i n th e am ou n t of $3 5 7 ,1 5 2 , exclu d i ng the op tion al tasks, and ap p rove an ad d ition al allocation of fu nd s in the am oun t of $57 ,15 2.

2. Reject t he p rop osal rec eived an d d eterm ine t hat a Wat er an d Recycled Wat er M ast er P lan is not a cost-effective op tion at this tim e

3. P rovid e alternative d irection to staff.

AT TAC HM E NT S :

Description
Agreement
RF P Ranking

Page 2 of 28 ends

1 CITY OF UPLAND

PROFESSIONAL SERVICES AGREEMENT

This Agreement is made and entered into as of September 12, 2022 by and between the City of Upland, a public agency organized and operating under the laws of the State of California with its principal place of business at 460 N. Euclid Avenue, Upland, CA 91786 (“City”), and Brown and Caldwell , a California Corporation with its principal place of business at 18500 Von Karman Avenue, Suite 1100, Irvine, CA 92612 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:

2022 Water and Recycled Water System Master Plan Update (hereinafter referred to as “the Project”).

B. Consultant is duly licensed and has the necessary qualifications to provide such services.

C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services.

Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.”

2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B.” b. Except as otherwise set forth in Section 2cthe total amount paid for services rendered by Consultant under this Agreement exceed the sum of $439,878.00. This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis.

c. The City Manager may approve Additional W ork, as further defined in Section 3, up to fifty thousand dollars ($50,000.00). In no event shall the total sum of the agreement (original compensation amount and Additional W ork) exceed fifty thousand dollars ($50,000.00). Any additional work in excess of this amount shall be approved by the City Council.

Page 3 of 28 ends

2 3. Additional Work.

If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.

4. Maintenance of Records.

Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.

5. Time of Performance.

The term of this Agreement shall be from September 12, 2022, to September 12, 2022, unless earlier terminated as provided herein. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Project. Consultant shall perform its services in a prompt and timely manner within the term of this Agreement and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). The Notice to Proceed shall set forth the date of commencement of work.

6. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; pandemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.
b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.

7. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.

Page 4 of 28 ends

3 c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.

8. Standard of Care
Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions.

9. Assignment and Subconsultant
Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.

10. Independent Contractor
Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided.
a. PERS Eligibility Indemnification
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (“PERS”) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.

Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.

11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section.

Page 5 of 28 ends

4 a. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
(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 Contractors 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).

Page 6 of 28 ends

5 (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
(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.

Combined Single Limit
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

Page 7 of 28 ends

6 Professional Liability $1,000,000 per claim and aggregate (errors and omissions)

Page 8 of 28 ends

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.
h. 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.
i. 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.
j. 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.

Page 9 of 28 ends

8 City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.

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.

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 $1,000 or more, 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 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). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable “public works” or “maintenance” project, 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

Page 10 of 28 ends

9 Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. 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.

15. Reserved.

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 San Bernardino, State of California. 17 Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) 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. 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 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 for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial

Page 11 of 28 ends

10 failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
18 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.

19. Organization
Consultant shall assign Amy Martin as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

20. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

21. Notice

CITY:

City of Upland
460 N. Euclid Avenue
Upland, CA 91786
Attn: Public Works Director
CONSULTANT:

Brown and Caldwell
18500 Von Karman Avenue, Suite 1100
Irvine, CA 92612
Attn: Amy Martin

and shall be effective upon receipt thereof.

22. 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.

23. 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.

24. Entire Agreement

Page 12 of 28 ends

11 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.

25. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the remaining provisions unenforceable, invalid or illegal.

26. 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.

27. Non-Waiver
None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing.

28. Time of Essence
Time is of the essence for each and every provision of this Agreement.

29. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.

30. 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 considerat ion 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.
[SIGNATURES ON FOLLOWING PAGE]

Page 13 of 28 ends

12 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN CITY OF UPLAND

AND BROWN AND CALDWELL

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF UPLAND BROWN AND CALDWELL

By: By:

Michael Blay
City Manager Its:

Printed Name:

ATTEST:

By:

Keri Johnson
City Clerk

Page 14 of 28 ends

13 EXHIBIT A
Scope of Services

TASK 1: PROJECT MANAGEMENT, COORDINATION, AND MEETINGS

TASK 1.1 | PROJECT MANAGEMENT & COORDINATION

This task includes managing the project team to track time and budget, work elements accomplished, work items planned for the next period, and budget needed to complete the project. This task also includes the preparation of monthly progress reports that will include the status of tasks, summary of budget, potential issues or concerns, and next steps. The effort of this task is based on a twelve (12) month project duration. In addition, BC will prepare a detailed project schedule with pertinent milestones for all tasks and subtasks. The first schedule and workflow plan will be presented at the kickoff meeting and will be updated on an as-needed basis.

TASK 1.2 | PROGRESS MEETINGS

BC will attend up to twelve (12) virtual progress meetings (including the kick-off meeting). An agenda will be provided prior to the progress meetings and notes will be prepared and provided to the City after the meeting. In addition, a detailed action item and decision log will be maintained throughout the project to facilitate smooth project execution and clearly delineate responsibilities and deadlines. It is assumed that progress meetings will be two (2) hours in duration.

TASK 1.3 | CITY COMMITTEE, COUNCIL, OR WORKSHOPS

BC will coordinate and attend up to four (4) in-person City Committee, Council, or Workshop meetings. An agenda and notes will be prepared and provided to the City after the meeting. It is assumed that workshops and City Council meetings will be up to four (4) hours in duration. In addition, in preparation for the City Council meetings, a Power Point presentation will be prepared.

TASK 1.4 | QUALITY ASSURANCE AND QUALITY CONTROL

BC will perform QA/QC at key milestones throughout the project. Submittals to the City shall include a cover sheet signed by QA/QC lead indicating that a review was completed and the submittal is satisfactory for delivery to the City. Deliverables for Task 1: Agendas, Meeting Notes, Action & Decision Log, Schedule Updates, City Council Power Point Presentations, Monthly Progress Reports, and QA/QC Cover Sheets

TASK 2: RESEARCH AND DATA ACQUISITION

TASK 2.1 | DATA COLLECTION LIST AND UPDATES

Page 15 of 28 ends

14 BC will prepare a prioritized data collection list to track the status of various documents and coordinate with the City to identify a centralized location to share data, such as, a SharePoint site.

TASK 2.2 | DATA COLLECTION AND REVIEW

BC will collect and perform a cursory review the City’s relevant planning documents provided in the RFP as well as the latest hydraulic models, GIS, customer billing data, general plan land-use information, demand forecasting studies, feasibility studies, record drawings, and any other pertinent data. The in-depth evaluation of information under subsequent tasks.

Deliverables for Task 2: Data Collection List

TASK 3: SUPPLY ANALYSIS

TASK 3.1 | SUMMARIZE HISTORICAL SUPPLY DATA AND WATER RIGHTS

BC will summarize historical supply data from the previous 5-years by supply source and rights to the supply source. It is assumed that BC will build upon data listed in the City’s 2020 Urban Water Management Plan (UWMP) and that production (by source) will be provided in a usable format. Sources will include imported water, groundwater (Six Basins and Chino Basin), purchased water (SAWCo and WECWC), and recycled water. The following information will be summarized in a table and graph and documented in the Master Plan Update.

TASK 3.2 | SUMMARIZE WATER QUALITY IMPACTS AND TREATMENT NEEDS

BC will summarize the water quality impacts by supply source, which will be based on information provided in the City’s 2010 Water Master Plan, 2020 UWMP, and data provided by City staff in a useable format. A summary table will be prepared (similar to Table 5.3 in the 2010 Master Plan). If a supply source is impacted by a water quality impact, a planning level assessment will be performed to identify if proposed treatment needs, blending opportunities, or replacement of the well based on age and performance to identify the best next step to maximize the use of the supply.

As part of this effort, BC will identify current and future potable water quality regulations that are impacting or may impact the future water system. It is assumed that City staff will provide input on potential issues that the City has faced relating due to water quality, or other similar concerns.

TASK 3.3 | DEVELOP PROJECTED SUPPLY NEEDS THROUGH BUILDOUT

Page 16 of 28 ends

15 A mass balance will be performed that compares the projected demands against the proposed supplies by pressure zone. This will assist in identifying the need to add additional local supply alternatives to maximize reliability and resiliency due to the uncertainty of imported water supplies.

TASK 3.4 | PERFORM SUPPLY RELIABILITY ANALYSIS

BC will perform a reliability analysis that considers impacts to water quality (based on existing water quality issues and future regulatory changes) loss of imported water, and drought impacts.

Opportunities to maximize the use of local supplies through groundwater recharge or operational flexibility for supply optimization will be considered. For budgeting purposes, up to three (3) outage or supply reduction scenarios will be performed to assess future supply needs. The analysis will be summarized in tables and will be compared with future demand conditions and will consider conservation and recycled water offsets, which were previously not established or known during the development of the 2010 Water Master Plan.

TASK 3.5 | DRAFT EXISTING AND FUTURE SUPPLY REPORT SECTIONS

BC will build upon the 2010 Water Master Plan Report and consolidate information and analysis performed under Task 3.1 through 3.4 to draft the existing and future supply report sections. The deliverable will be provided under Task 8. Deliverables for Task 3: Summary Tables of Existing & Projected Supplies by Source, Water Quality Impacts (Existing and Future), and Reliability Analysis (electronic copy for discussion with City)

TASK 4: DEMAND ANALYSIS

TASK 4.1 | SUMMARIZE HISTORICAL DEMAND DATA

Historical demand data will be compiled and summarized from the previous 5-years. It is assumed that the City will provide data in a usable format. If data is available (and provided by the City), demands will be summarized by pressure zone. The historical summary will be include: Unaccounted-for-Water - BC will review historical consumption data to establish the unaccounted- for-water factor consistent with the AWWA guidelines. Seasonal Peaking Factors - Historical billing data will be used to develop system-wide seasonal peaking factors for minimum day demands (minDD), maximum month demands (MMD), peak hour demand (PHD), and maximum day demands (MDD). Data will be summarized in a table and graphic format and documented within the Master Plan Update.

TASK 4.2 | UPDATE LAND USE PROJECTIONS

BC will use the City’s 2020 UWMP, GIS, general plan, and current zoning map as well as other pertinent planning documents and discussions with the City’s development staff to describe the current and proposed land uses within the City’s service area. The acreage for each land use

Page 17 of 28 ends

16 classification will be summarized for use in the water demand projections. A GIS map will be prepared for discussion purposes. A 2-hour workshop with the City’s planning staff will be performed to identify proposed developments, timing of developments, and impacts related to Regional and Housing Needs Assessment (RHNA). The following assumptions will be documented and utilized as a baseline for the demand projections through buildout (or by 2045).

BC will also update the population projections presented in the 2020 UWMP by using the U.S.

Census Bureau population projections by census tract and/or projected rate-of-growth as estimated by other available data within the San Bernardino County region. Populations will be projected in 5-year increments through buildout (or by 2045).

TASK 4.3 | EVALUATE CONSERVATION PROGRAMS AND OPPORTUNITIES

BC will summarize existing conservation programs and needs (or benchmarks) based on the supply reliability analysis performed as well as considerations regarding the potential changes to indoor water use based on upcoming legislation. The City’s 2020 UWMP will be used to document the City’s existing and future conservation program initiatives. This includes the City’s involvement with the Regional Alliance, which is led by Inland Empire Utilities Agency (IEUA). The evaluation and opportunities will be discussed with the City and documented in the Master Plan Update and provided to the City under Task 8.

TASK 4.4 | RECYCLED WATER REGULATORY FRAMEWORK AND ALTERNATIVES

BC will develop a table that summarizes existing and future recycled water regulatory framework that will be used to assess existing and future recycled water opportunities. The City’s 2008 Recycled Water Master Plan as well as the latest planning reports and studies will be used to assess the best use of the City’s recycled water. For budgeting purposes, up to three (3) alternatives will be considered. This includes expanding the recycled water system, opportunities to maximize groundwater recharge, or a hybrid approach. The results and recommendations will be documented in the Master Plan Update and provided to the City under Task 8.

TASK 4.5 | SUMMARIZE PROJECTED DEMANDS AND OFFSETS

Utilizing the City’s latest billing data and land use changes identified under Task 4.2, a land use based demand projection will be developed in 5-year increments through buildout (or 2045). BC will build upon the information listed in the City’s 2020 UWMP and include demand offsets (conservation and recycled water opportunities). It is assumed that the conservation offsets will be based on existing reports, planning studies, and assumptions used IEUA’s Land Use Based Demand Model (climate change impacts and passive conservation). The proposed recycled water offsets will be based on the evaluation performed under Task 4.4. BC has proposed an alternative approach to evaluate conservation offsets or scenarios, which is included under the optional tasks listed in Task 9. For the land use based approach, BC will update the unit demand factors that

Page 18 of 28 ends

17 were developed as part of the 2020 UWMP. The factors will be based on the City’s latest consumption patterns by land use type and will be applied to future land use identified under Task 4.2 and approved developer studies.

TASK 4.6 | DRAFT EXISTING AND FUTURE DEMAND REPORT SECTIONS

BC will build upon the 2010 Water Master Plan Report and consolidate information and analysis performed under Task 4.1 through 4.5 to draft the existing and future demand analysis report sections. The deliverable will be provided under Task 8.

Deliverables for Task 4: Summary Tables of Existing & Projected Demand, Conservation and Demand Offset Impacts (Existing and Future), Regulatory Framework, and Recycled Water Opportunities (electronic copy for discussion with City)

TASK 5: WATER SYSTEM MODEL

TASK 5.1 | UPDATE HYDRAULIC MODEL AND WORKSHOP

GIS and Model Update

As part of this effort, BC will update the City’s GIS using ArcGIS Pro and convert the City’s existing hydraulic model from InfoWater to InfoWater Pro. BC will perform a data check to determine if there are any data discrepancies or inconsistencies between the GIS and model. It is assumed that updates will include new infrastructure installed after the development of the 2010 Water Master Plan. It is assumed that the City will provide the latest model and coordinate with BC staff to identify any updates or system changes made to the model since the last update and will include pipeline replacements, new or planned infrastructure, and all pipelines 4-inches in diameter and larger. The proposed changes will be discussed in during a virtual 2-hour Modeling Update Workshop before incorporating the edits into the hydraulic model. For budgeting purposes, up to 32 hours has been included to update the GIS and model to reflect the City’s latest system. If additional time is required after an initial review of the GIS and model is performed, BC will coordinate with the City and discuss before proceeding. BC also has the capability to set up the model to use InfoWater’s GIS Gateway, which allows for updating model piping directly from GIS. This option can be discussed with City staff. For data on storage facilities, pump stations, and PRVs, any available information provided by the City will be compared to the previous model to confirm that they are being accurately represented. If information is lacking, BC will work with City staff to verify facility information.

Water Demand Allocation

Existing demands will be allocated within the hydraulic model to obtain a spatial distribution of the demands, which will be based on a review of parcel, billing, and water use data. Demand sets for potable water offsets due to the use of recycled water, water loss, and conservation will be incorporated for both the existing and buildout (or 2045) scenarios.

TASK 5.2 | DRAFT AND FINAL CALIBRATION PLAN AND FIELD TESTING

Page 19 of 28 ends

18 A draft and final calibration plan will be developed, which will describe field work to be done to collect data for model calibration. BC typically implements a two-pronged approach for model calibration: operational calibration and field calibration. The plan will describe field testing locations, data to be collected during testing, and the help required from City staff. BC will assist in the field testing, owns field testing equipment, and has developed forms in a data collection application for field testing. The draft calibration plan will be discussed with City staff to confirm locations. Once locations are confirmed, a 2-day field visit will be scheduled with City staff to perform necessary testing. It is assumed that the City staff will assist in the field testing and that up to 16 fire flow tests can be performed over the 2-day period.

TASK 5.3 | MODEL CALIBRATION AND WORKSHOP

Diurnal Patterns

Diurnal patterns for the City’s entire water system will be developed to represent the hourly demand fluctuations on the selected calibration day as well diurnal curves for individual pressure zones (if data is available).

Operational Calibration

Operational calibration includes comparing model tank, pump, and valve operations with SCADA data. Operational calibration confirms that the model operates correctly for day-to-day (extended period simulation) operations. Calibration will include adjusting pump, tank, and valve settings and controls until model results match flows and pressures from SCADA data. Input from discussions with the City’s engineering and operations staff will be important in this step.

Field Calibration

The field calibration involves performing hydrant flow tests throughout the water system and comparing flow and pressure field results to model results. Hydrant tests are used when calibrating model C factors. In addition, hydrant tests are very effective at identifying issues including unknown closed valves, open valves at pressure zone boundaries, and wrong piping in the GIS. The calibrated model will be used as the foundation for the evaluation of existing and future conditions
Results from the Operational and Field Calibration will be summarized and presented to City staff during a virtual Operations Workshop. The final results will be compiled and included in the Draft and Final Modeling Technical Memorandum under Task 5.5 and included as an appendix in the Master Plan Report.

TASK 5.4 | DEVELOP EXISTING AND BUILDOUT SCENARIOS IN MODEL

The calibrated model will be used as a baseline when setting up both the existing and buildout scenarios (or 2045) in the hydraulic model. The demand projections developed under Task 4 will be used when developing the buildout scenario. The system analysis will be performed under Task 6, which will identify the need for existing and future facilities. These facilities will be added into the model under Task 6.

Page 20 of 28 ends

19 TASK 5.5 | DRAFT AND FINAL MODELING TECHNICAL MEMORANDUM

A Draft and Final Modeling TM will be developed to summarize the work completed as part of Task 5.1 through 5.4. the TM will include a summary of the updates made in the hydraulic model, demand sets developed, calibration activities, and tables/graphs/figures that document the accuracy of the model calibration results.

TASK 5.6 | HYDRAULIC MODELING SOFTWARE

(TASK REMOVED)

TASK 5.7 | MODEL TRAINING

Upon completion of the model and Master Plan Update, a 2-day training will be scheduled with City staff using InfoWater Pro. It is assumed that the City will provide workstations and licenses for the training. A copy of the final model will be provided for the City’s future use.

Deliverables for Task 5: Draft & Final Calibration Plan (electronic copy), Power Points for Model Update Workshop and Model Calibration Workshop, Draft & Final Modeling TM (electronic copy), software licenses (REMOVED), and the Final Water Model in InfoWater Pro

TASK 6: SYSTEM IMPROVEMENTS/RECOMMENDATIONS

TASK 6.1 | REVIEW AND UPDATE EVALUATION CRITERIA

The system sizing and evaluation criteria from the City’s 2010 Master Plan will be reviewed and compared with industry standards to assess recommendations on revisions to these criteria.

Changes to the criteria will be summarized in a table and provided to City staff for review prior to performing system analysis.

TASK 6.2 | EXISTING CAPACITY EVALUATION OF WATER SYSTEM

The calibrated hydraulic model developed under Task 5 will be used to perform an existing system evaluation to identify areas that do not meet the minimum pressure, velocity, or fire flow requirement. The model will be used to size improvements to meet the criteria. Prior to performing the fire flow analysis, BC will confirm that hydrants are assigned to the correct pipeline. Deficiencies identified will be discussed with City staff in a progress meeting, which is budgeted under Task 1. The model and GIS figures will be used to demonstrate the results and recommended improvements to mitigate deficiencies. The 2010 Master Plan recommendations will be compared with the recommendations identified as part of Task 6.2. The figures will be included in the Master Plan Update under Task 8.

TASK 6.3 | BUILDOUT CAPACITY EVALUATION OF WATER SYSTEM

Page 21 of 28 ends

20 The calibrated hydraulic model developed under Task 5 will be used to perform a future system evaluation to identify areas that do not meet the minimum pressure, velocity, or fire flow requirement. It is assumed that buildout will occur by 2045, unless otherwise noted by the City.

The model will be used to size improvements to meet the criteria. Deficiencies identified will be discussed with City staff in a progress meeting, which is budgeted under Task 1. The model and GIS figures will be used to demonstrate the results and recommended improvements to mitigate deficiencies. The combined improvements that are related to existing deficiencies and growth will be identified by a percent split when developing the CIP as part of Task 7. The figures will be included in the Master Plan Update under Task 8.

TASK 6.4 | EXISTING AND BUILDOUT PUMP STATION AND STORAGE ANALYSIS

Existing Storage and Pump Station Analysis

Develop an existing storage and pumping mass balance table, which will incorporate any updates to the evaluation criteria and identify the project trigger (changes in land use, demands, criteria, condition, etc.). Opportunities to create reliability and redundancy will be considered when identifying improvement projects to mitigate deficiencies.

Future Storage and Pump Station Analysis

Develop a future storage and pumping mass balance table, which will incorporate any updates to the evaluation criteria and identify the project trigger (changes in land use, growth, criteria, condition, etc.). Opportunities to create reliability and redundancy will be considered when identifying improvement projects to mitigate deficiencies.

TASK 6.5 | CONDITION ASSESSMENT DATA REVIEW AND FIELD VISIT

This task will include a review of existing condition assessment and operations/maintenance reports to identify upcoming replacement projects that should be considered within the capital improvement plan. It is assumed that the rehabilitation and replacement of the facilities is based on the latest industry standards and input from City staff. This does include a 2-day cursory field visit and the development of field notes to summarize conversations with City staff and identify issues through a visual inspection. BC will coordinate with the City staff to identify projects that will be included in the CIP and summarize subsequent condition assessments that may be required to maintain system reliability. The field notes will be included in an appendix within the Master Plan Update under Task 8.

If the City would like to include a pipeline replacement strategy, a scope of work and fee estimate will be provided. BC has the tools and techniques to tailor the strategy and the level of detail can vary based on available data or needs.

TASK 6.6 | LIST OF PROPOSED IMPROVEMENTS PROJECTS AND FIGURE

BC will summarize the City’s existing and future system deficiencies and condition related improvements in a table format and will include both water and recycled water, which will be discussed with City staff prior to developing the prioritized CIP. The improvements will include

Page 22 of 28 ends

21 pipeline replacements due to capacity deficiencies, pump station and storage improvements (based on capacity and condition), well rehab or replacement (based on input from City staff and the analysis performed under Task 3), as well as other relevant projects that have been included in the City’s existing CIP. Pipelines or other facilities within the distribution system that have has known operational issues will be discussed and included within the list as needed. A consolidated figure that identifies the capacity deficiencies (pipelines/pump stations/storage tanks/wells) will be developed for discussion purposes with City staff.

TASK 6.7 | DRAFT EXISTING AND SYSTEM ANALYSIS SECTIONS

BC will build upon the 2010 Water Master Plan Report and consolidate information and analysis performed under Task 6.1 through 6.6 to draft the existing and future system analysis report sections. The deliverable will be provided under Task 8.

Deliverables for Task 6: Evaluation Criteria Table (electronic copy for discussion with City staff), Existing and Future System Analysis GIS Figures (electronic copies for discussion with City staff), Existing and Future Storage and Pump Station Analysis Tables (electronic copies for discussion with City staff), and List of Project Improvements and Figure (electronic copies for discussion with City staff)

TASK 7: SYSTEM MAINTENANCE/REPLACEMENT PROGRAM

TASK 7.1 | UPDATE COST ASSUMPTIONS AND UNIT COSTS

BC will develop planning-level (Class 5 per AACE International) cost estimating assumptions for the water system facilities within the distribution system. These unit costs will reflect the most current market conditions in the region (Los Angeles County and City projects). BC will coordinate with City staff on current bid results that may be used to adjust unit costs. BC will estimate cost escalation from sources such as historical cost trends from the ENR Index Los Angeles Area. In addition, a table with typical contingency and mark-up cost factors will be prepared. The cost development and amortization assumptions will be discussed and finalized with the City staff prior to the development of the CIP.

TASK 7.2 | DRAFT AND FINAL PRIORITIZED CIP TABLE

BC will develop Class 5 planning-level cost estimates for each of the recommended CIP identified under Task 6.6. The cost estimates will be summarized in tabular format by project ID, facility type, and priority. A GIS map will be prepared to depict the locations of the proposed system improvements with matching project IDs.

A Draft and Final CIP table will group projects into the near-term and long-term planning horizons. The near-term and long-term will be selected through discussions with City staff.

Higher priority projects will be included within the near-term and will be distributed on an annual or yearly basis. Long-term projects will be grouped since the timing is unknown.

TASK 7.3 | DRAFT CIP CHAPTER (WATER AND RECYCLED WATER)

Page 23 of 28 ends

22 BC will build upon the 2010 Water Master Plan Report and consolidate information developed as part of Task 7.1 and Task 6.2 to draft the CIP report chapter. The deliverable will be provided under Task 8 and will include the graphs, tables, and figures developed as part of Task 6 and Task 7.

Deliverables for Task 7: Draft & Final CIP Table (electronic copy and included in Master Plan Report)

TASK 8: SUBMITTALS – MASTER PLAN REPORT

TASK 8.1 | 60% MASTER PLAN

BC will compile the work performed in previous subtasks under Task 2 through Task 6 into master plan report chapters. It is assumed that the 60% Master Plan will include the following:

Chapter 1 – Introduction, Chapter 2 – Land Use and Population, Chapter 3 – Demand Projections, and Chapter 4 –

Evaluation Criteria. The report will build upon the City’s 2010 Master Plan and will provide clear rationale for the basis of planning tasks that will be used to perform the system analysis. An electronic copy and three (3) hard copies will be submitted to City staff for review and comment.

It is assumed that the City will provide comments within two weeks.

Deliverables for Task 8.1: 60% Master Plan (electronic copy and 3 hard copies)

TASK 8.2 | 85% MASTER PLAN

BC will compile the work performed in previous subtasks under Task 2 through Task 6 into master plan report chapters. It is assumed that the 85% Master Plan will include the following:

Chapter 5 – Potable Water System Analysis, Chapter 6 – Recycled Water Evaluation, and Draft CIP Table. The report will build upon the City’s 2010 Master Plan and will provide clear rationale for the system analysis tasks that will be used to develop the prioritized CIP. An electronic copy and three (3) hard copies will be submitted to City staff for review and comment.

It is assumed that the City will provide comments within two weeks.

Deliverables for Task 8.2: 85% Master Plan (electronic copy and 3 hard copies)

TASK 8.3 | DRAFT MASTER PLAN

BC will incorporate the comments received from City staff on Task 8.1 and 8.2 and compile the Draft Master Plan Report. It is assumed that the Draft Master Plan will include the following:

Draft Executive Summary, revisions to Chapter 1 though Chapter 6, Chapter 7 – Capital Improvement Plan, .and supporting appendices. An electronic copy and three (3) hard copies will be submitted to City staff for review and comment. It is assumed that the City will provide comments within two weeks.

Page 24 of 28 ends

23 Deliverables for Task 8.3: Draft Master Plan (electronic copy and 3 hard copies)

TASK 8.4 | FINAL MASTER PLAN

BC will incorporate the comments received from City staff on Task 8.3. It is assumed that the Final Master Plan will incorporate all final comments received from City staff on the Executive Summary, Chapter 1 through Chapter 7, and supporting appendices. An electronic copy and ten (10) hard copies will be submitted to City staff.

Deliverables for Task 8.4: Final Master Plan (electronic copy and 10 hard copies)

TASK 9: OPTIONAL TASKS
TASK 9.1 | DSS DEMAND PROJECTION TOOL

Our supplemental approach to the City’s demand projections includes the use of a dynamic forecasting tool called the “Least Cost Planning Decision Support System Model” (DSS Model) to help navigate the uncertainties of water demand forecasting and provide confidence in the basis of our planning. The tool follows the methodologies specified in the AWWA Manual of Water Supply Practices M52, which is considered the industry standard for conservation and demand forecasting. BC is a licensed user of the tool. We will collaborate with City staff at scheduled progress meetings to discuss demand forecasting. During these meetings, a review of the DSS Model will be performed so that City staff feel comfortable and confident with the selected demand forecast since it is one of the key foundations for comprehensive and integrated master plans. This task will include two (2) meetings with City staff to discuss the following items: quantifying the impact of future planned conservation efforts, quantifying (to the extent possible) the impact of climate change and climate variability, quantify the impact of recycled water, review uncertainty of redevelopment and future population projections provided by the State, select demand scenarios to model, and results. This methodology inputs population data into the DSS Model and compares the results at varying levels of conservation.

The DSS demand tool will provide a range that can be used to assess future supply needs with varying conditions. This will help the City establish conservation targets and identify future supply needs to increase system reliability and resiliency. As growth evolves and development agreements are established over time, the DSS model can be updated, and demands can be refined. If this option is selected, the baseline target will be used to perform the future system analysis under Task 6.

Deliverables for Task 9.1: Table with Demand Projection Results (electronic format)

TASK 9.2 | STORY MAP

Since hard copies can be challenging to use when cross sharing information, BC proposes the use of an ESRI StoryMap. StoryMaps will allow the City to view CIP projects in an interactive format that can be customized to include project details and assist with integrating project priorities with multiple systems. This web application provides critical background information, project phasing, costs, and project specifics such as future user cost allocations. The City’s StoryMap will allow users to zoom into specific project locations within the service area, which will assist City staff in facilitating discussions with council members or stakeholders.

Page 25 of 28 ends

24 Deliverables for Task 9.3: StoryMap data files (electronic)

TASK 9.3 | RECYCLED WATER HYDRAULIC MODEL UPDATE AND ANALYSIS

If required, BC staff will request a copy of the latest recycled water mode from City staff to confirm system sizing for the future recycled water alternatives. BC staff will review the latest model and GIS to confirm the level of effort. For budgeting purposes, 40 hours have been included to update the model to mimic existing condition. If additional time is required based on the review, BC will discuss with City staff prior to proceeding. The remaining effort will include the development of scenarios based on the recycled water evaluation performed.

Deliverables for Task 9.3: Updated Recycled Water Model (electronic file) and System Analysis Figures and Results (electronic format)

TASK 9.4 | AS-NEEDED SERVICES

To support the City staff will follow up tasks and modeling troubleshooting, up to $17,961 has been included as an optional task. Tasks may also include performing supplemental hydraulic modeling analysis for system optimization alternatives, funding support, or supplemental field work.

Page 26 of 28 ends

25 EXHIBIT B
Schedule of Charges/Payments

DETAILED FEE ESTIMATE
2022 Water and Recycled Water Master Plan Update City
of Upland

Pu
c
c
i
o
,

Mi
c
h
a
e
l
V
Li
e
c
h
t
y
,

Sh
e
m
R
Ga
i
n
,

Je
n
n
i
f
e
r
L
Se
l
s
k
y
,

Pa
u
l

Ma
r
t
i
n
,

Am
y

Lu
,

Jo
c
e
l
y
n

Ri
c
k
s
,

Co
l
i
n
R
Mc
L
e
a
n
,

Br
a
n
d
o
n
J
Ba
r
i
b
e
a
u
,

He
l
e
n
e

Za
c
h
e
i
s
,

Ge
o
r
g
e
A
Fu
g
a
l
,

An
d
r
e
w
L
Pa
r
k
e
r
,

Au
s
t
a
M
Br
i
g
g
s
,

Ma
r
k
O
Du
m
m
e
r
,

Ca
t
h
e
r
i
n
e
A
O'
H
a
r
e
,

Me
a
g
a
n

Si
c
o
r
a
,

Su
s
a
n
M
Sc
h
o
c
k
,

Da
w
n
M
Su
r
i
o
,

Em
m
a
S

Task

Phase Description PI
C

QA
/
Q
C

Te
c
h
n
i
c
a
l

Ad
v
i
s
o
r

Pr
o
j
e
c
t

Ma
n
a
g
e
r

Pr
o
j
e
c
t

En
g
i
n
e
e
r

Su
p
p
l
y
&
De
m
a
n
d
Le
a
d

Hy
d
r
o
g
e
o
l
o
g
y

Wa
t
e
r
Qu
a
l
i
t
y

& Re
g
u
l
a
t
i
o
n
s

Gr
o
u
n
d
w
a
t
e
r

Tr
e
a
t
m
e
n
t

Hy
d
r
a
u
l
i
c

Mo
d
e
l
i
n
g

Le
a
d

Re
g
u
l
a
t
o
r
y

Fr
a
m
e
w
o
r
k

Co
n
d
i
t
i
o
n

As
s
e
s
s
m
e
n
t

Co
s
t
Es
t

St
a
f
f
En
g
i
n
e
e
r

GI
S
&
Gr
a
p
h
i
c
s

Wo
r
d

Pr
o
c
e
s
s
i
n
g

Total Labor
Hours

Total Labor
Effort

Total ODCs

Total Effort
$299.00 $299.00 $275.16 $299.00 $254.43 $181.74 $148.59 $171.78 $275.70 $299.00 $245.49 $208.98 $299.00 $210.09 $103.32 $149.19 $129.06 $131.85

1.0 Project Admin, Coord & Meetings 0 24 8 0 84 68 6 2 2 0 16 2 2 0 14 8 0 12 248 54,060 1,000 55,060

1.1 PM & Coordination (12 month) 0 0 0 0 24 12 2 0 0 0 4 0 0 0 2 0 0 12 56 11,355 0 11,355

1.2 Progress Meetings (12 meetings) 0 0 0 0 36 24 4 2 2 0 12 2 2 0 12 0 0 0 96 20,212 0 20,212

1.3 City Committee, Council, Workshop 0 0 0 0 24 32 0 0 0 0 0 0 0 0 0 8 0 0 64 13,116 1,000 14,116

1.4 QA/QC 0 24 8 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 32 9,377 0 9,377

2.0 Research and Data Acquisition 0 0 0 0 2 6 4 0 0 0 12 0 0 0 28 0 0 0 52 8,033 0 8,033

2.1 Data Collection List & Updates 0 0 0 0 0 2 0 0 0 0 4 0 0 0 8 0 0 0 14 2,172 0 2,172

2.2 Data Collection & Review 0 0 0 0 2 4 4 0 0 0 8 0 0 0 20 0 0 0 38 5,861 0 5,861

3.0 Supply Analysis 0 0 0 4 10 14 70 12 36 28 8 0 0 0 0 0 0 0 182 39,008 0 39,008

3.1 Historical Supply Data Water Right 0 0 0 0 2 0 16 4 0 0 0 0 0 0 0 0 0 0 22 3,573 0 3,573

3.2 Water Quality Impact & Treatm Needs 0 0 0 0 2 2 2 4 32 24 0 0 0 0 0 0 0 0 66 17,855 0 17,855

3.3 Dev Projected Supply Needs Buildout 0 0 0 0 2 0 8 0 0 0 0 0 0 0 0 0 0 0 10 1,698 0 1,698

3.4 Perform Supply Reliability Analysis 0 0 0 2 2 8 32 0 0 0 8 0 0 0 0 0 0 0 52 9,280 0 9,280

3.5 Draft Existing & Future Supply Rep 0 0 0 2 2 4 12 4 4 4 0 0 0 0 0 0 0 0 32 6,603 0 6,603

4.0 Demand Analysis by Zone 0 0 0 2 14 64 92 0 0 0 8 24 0 0 44 8 0 0 256 42,181 0 42,181

4.1 Summarize Historical Demand Data 0 0 0 0 0 0 8 0 0 0 2 0 0 0 16 0 0 0 26 3,333 0 3,333

4.2 Update Land Use Projections 0 0 0 0 8 4 40 0 0 0 4 0 0 0 20 8 0 0 84 12,948 0 12,948

4.3 Evaluate Conservation Programs 0 0 0 0 0 4 12 0 0 0 0 0 0 0 0 0 0 0 16 2,510 0 2,510

4.4 RW Regulatory Framework & Alt 0 0 0 0 2 40 0 0 0 0 0 24 0 0 0 0 0 0 66 12,794 0 12,794

4.5 Summarize Projected Demands 0 0 0 0 0 4 0 0 0 0 2 0 0 0 0 0 0 0 6 1,218 0 1,218

4.6 Draft Existing & Future Demand Rpt 0 0 0 2 4 12 32 0 0 0 0 0 0 0 8 0 0 0 58 9,378 0 9,378

5.0 Water System Model 0 0 0 0 14 4 0 0 0 0 96 0 0 0 144 0 0 0 258 42,734 2,500 45,234

5.1 Update Hydraulic Model & Workshop 0 0 0 0 8 2 0 0 0 0 16 0 0 0 40 0 0 0 66 10,460 0 10,460

5.2 Draft & Final Cal Plan & Field Test 0 0 0 0 0 0 0 0 0 0 12 0 0 0 8 0 0 0 20 3,772 2,500 6,272

5.3 Model Calibration & Workshop 0 0 0 0 4 2 0 0 0 0 24 0 0 0 60 0 0 0 90 13,472 0 13,472

5.4 Devel Existing & Buildout Model 0 0 0 0 0 0 0 0 0 0 4 0 0 0 12 0 0 0 16 2,222 0 2,222

5.5 Draft & Final Modeling TM 0 0 0 0 2 0 0 0 0 0 16 0 0 0 24 0 0 0 42 6,916 0 6,916

5.6 Hydraulic Modeling Software (Removed) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

5.7 Model Training (2 days) 0 0 0 0 0 0 0 0 0 0 24 0 0 0 0 0 0 0 24 5,892 0 5,892

6.0 System Improvements/Recommendations 0 0 0 2 24 22 0 0 0 0 98 0 64 0 192 0 0 0 402 73,734 600 74,334

6.1 Review & Update Evaluation Criteria 0 0 0 0 0 0 0 0 0 0 8 0 0 0 0 0 0 0 8 1,964 0 1,964

6.2 Existing Capct Eval of Water Syst 0 0 0 0 4 2 0 0 0 0 32 0 0 0 60 0 0 0 98 15,436 0 15,436

6.3 Buildout Capct Eval of Water Syst 0 0 0 0 4 2 0 0 0 0 24 0 0 0 40 0 0 0 70 11,406 0 11,406

6.4 Existing & Buildout Pump Stat 0 0 0 0 4 2 0 0 0 0 12 0 4 0 32 0 0 0 54 8,829 0 8,829

6.5 Condition Assessm Data Review 0 0 0 0 2 2 0 0 0 0 2 0 60 0 8 0 0 0 74 20,130 600 20,730

6.6 List of Proposed Projects & Figure 0 0 0 0 2 2 0 0 0 0 4 0 0 0 12 0 0 0 20 3,094 0 3,094

6.7 Draft Existing & Future Syst Analys 0 0 0 2 8 12 0 0 0 0 16 0 0 0 40 0 0 0 78 12,875 0 12,875

7.0 System Maint/Replac Prgr-Asset Mgmt 0 0 0 2 16 8 2 2 0 2 20 0 8 12 56 0 0 0 128 22,970 0 22,970

7.1 Update Cost Assump & Unit Costs 0 0 0 0 0 0 0 0 0 0 0 0 0 12 0 0 0 0 12 2,521 0 2,521

7.2 Draft & Final Prioritized CIP Table 0 0 0 0 12 8 2 2 0 2 16 0 8 0 24 0 0 0 74 14,545 0 14,545

7.3 Draft CIP Chapter (Water & Recycl) 0 0 0 2 4 0 0 0 0 0 4 0 0 0 32 0 0 0 42 5,904 0 5,904

8.0 Submittals - Master Plan Report 0 0 0 12 44 84 12 4 4 2 48 0 12 0 104 0 48 0 374 66,532 3,800 70,332

8.1 60% Master Plan 0 0 0 0 8 12 0 0 0 0 4 0 0 0 16 0 16 0 56 8,916 600 9,516

8.2 85% Master Plan 0 0 0 0 12 16 0 0 0 0 8 0 0 0 24 0 16 0 76 12,470 600 13,070

8.3 Draft Master Plan & Executive Summary 0 0 0 8 16 32 8 2 4 2 24 0 8 0 32 0 8 0 144 28,134 600 28,734

8.4 Final Master Plan 0 0 0 4 8 24 4 2 0 0 12 0 4 0 32 0 8 0 98 17,012 2,000 19,012

9.0 Optional Tasks 0 0 0 0 76 88 60 0 0 0 144 0 0 0 60 40 0 0 424 82,726 0 82,726

9.1 DSS Demand Tool 0 0 0 0 16 8 60 0 0 0 32 0 0 0 0 0 0 0 116 22,296 0 22,296

9.2 StoryMap 0 0 0 0 12 16 0 0 0 0 32 0 0 0 0 40 0 0 100 19,784 0 19,784

9.3 Recycled Water Hydraulic Model Update 0 0 0 0 8 24 0 0 0 0 40 0 0 0 60 0 0 0 132 22,416 0 22,416

9.4 As-Needs Support Services 0 0 0 0 30 2 0 0 0 0 40 0 0 0 4 0 0 0 76 18,229 0 18,229 GRAND TOTAL (WITHOUT OPTIONAL TASKS) 0 24 8 22 208 270 186 20 42 32 310 26 86 12 582 16 48 12 1,900 349,252 7,900 357,152 GRAND TOTAL (WITH OPTIONAL TASKS) 0 24 8 22 274 320 246 20 42 32 450 26 86 12 646 56 48 12 2,324 431,978 7,900 439,878

Page 27 of 28 ends

WATER AND RECYLED WATER SYSTEMS MASTER PLAN UPDATE

CONSULTANT CRITERIA RATING FORM

FIRMS FINAL RANK
AKEL ENGINEERING GROUP 4
BRADY 3
BROWN AND CALDWELL 1
DUDEK 5
STETSON ENGINEERS 2

EVALUATION CRITERIA

PROJECT APPROACH AND UNDERSTANDING

FIRM'S QUALIFICATIONS

EXPERIENCE OF PROPOSED PERSONNEL

PERSONNEL & SUB-CONSULTANTS

REFERENCE CHECKS

ORGANIZATION AND COMPLETENESS OF PROPOSAL

Page 28 of 28 ends

S T A F F R E P O R T
I T E M N O . 10.V .

B O B C R I TC H F I E L D, E N G I N E E R I N G M A N A G E R S U B J E C T :A P P R O V A L O F A D D I T I O N A L A L LO C A T I O N F O R T R A F F I C S I G N A L

M A I N T E N A N C E S E R V I C E S

R E C O M M E N D E D A C T I O N
I t is rec om m en d ed that t he C i ty C oun cil aut horize a b u d g et am end m en t to in crease the b u d g et b y $65 ,00 0 in t he Traffic Facility M ai n t en an ce exp en d i tu re accoun t 10 1-5 40 6-5 25 8 for b oth F Y 2 02 1/2 2 an d F Y 2 02 2/2 3.

G O A L S T A T E M E N T
Th e p rop os ed act ion s u p p orts t he C ity's g oal to of m ain tai n i n g C it y t raffic sig n als an d im p rovin g the safety of the com m un ity.

B A C K G R O U N D
Th e C it y is d i rec tl y res p on si b l e for m ain taining 87 traffic s ig n al s, an d p ays a p rop ortion ate fair sh are t o ad jacen t ag en cies (M on t cl air an d Rancho C u c am on g a) for t h e rem ain in g 7.

A d d itionally, U p lan d m ain tai n s 11 flashi ng b eacons (10 in s ch ool zon es , 1 p ed estrian crossin g sig n al).

O n O c tob er 2 6 , 2 0 2 0 , th e C it y C ou n ci l aw ard ed a t raffic sig n al m aintenan ce services ag reem en t to E con olite System s, I nc. for a con tract p eriod of 3 years, w ith th e op tion to ren ew for t w o ad d it ion al on e-year t erm s up on m ut ual con sen t of b oth th e C i ty an d E con olite System s, I n c.

I n accord ance w it h i nd ustry st and ard s, t raffi c s ig n al m ai n t en an ce g en erall y con si st s of two typ es of act ivi ti es: p reventative m ai n t en an ce and em erg ency/extraord in ary services.

P reventative m ain ten ance involves ch ecki ng , c lean in g , rep airin g , an d rep l aci n g c ert ain sig n al p arts, on ce every two m ont hs. E m erg en cy/extraord inary s ervi ce p ert ain s t o on-call services,

Page 1 of 12 ends

for wh ich t h e c on t rac tor resp nd s t o si g n al fai lu res , m alfu nctions, vehi cl e col li si on s , u p g rad es, ad ju stm en ts, etc., at th e req uest of the C ity.

I S S U E S /A N A L Y S I S
H istorically t he C i ty h as b een es ti m at in g an an n u al exp end iture am oun t of $1 85 ,00 0 to cover th e estim ated cost for traffic sig nal p reven tative m aintenan ce and extraord inary/em erg en cy services. O ver the p as t fou r years, th e nu m b er of in ci d en ts resulting in d am ag e to traffic sig n al infrastru cture has b een in creasing as id en tified in th e tab le b elow:

F iscal
Y ear
N o . o f
Incidents
R esulting in
D am ag e to
T raffic S ig nal
Infrastructure
T o tal
E xpenditure
E xpenditure
D irectly
R elated t o
T raffic
S ignal
D amage
S ubro gatio n
R eceived
F inal T o tal
E xpenditure
20 18 /20 19 6 $1 58 ,83 6.4 6 $3 2,1 08 .19 $1 ,78 4.0 9 $15 7,0 52 .37 20 19 /20 20 13 $2 23 ,49 1.1 6 $5 3,5 56 .74 $6 ,05 6.8 9 $21 7,4 34 .27 20 20 /20 21 18 $2 08 ,38 7.4 9 $5 6,6 45 .07 $27 ,61 7.7 1 $18 0,7 69 .78 20 21 /20 22 41 $2 34 ,11 5.1 2 $7 8,3 08 .55 $20 ,23 3.3 6 $21 3,8 81 .76

W ith th e i n c reas e in t he n u m b er of in ci d en ts , t h e C ity's cost t o rep air t he traffic sig n al d am ag e d ue t o the i ncid ent s i s also in creasi ng . W h i le th e C i ty h as had som e su cc ess in recovering cost t h rou g h t he cl aim s/s u b rog ati on p rocess, t he tren d in d am ag e c on t in u es to in crease.

F I S C A L I M P A C T S
Th e C it y an n u all y b u d g et s $18 5,0 00 i n th e Traffi c Facilit y M ain ten ance exp en d it u re accoun t 10 1-5 40 6-5 25 8. A p p roval of th e rec om m end ed action w il l au th ori ze the tran s fer $65 ,00 0 of un sp ent P ub lic Works fun d s to the Traffic Facility M ain ten ance exp end iture accou nt for a total ann ual am ou nt of $2 50 ,00 0 for F iscal Years 2 02 1/2 2 an d 2 02 2/2 3.

A L T E R N A T I V E S
P rovid e altern ative d irection to staff.

AT TAC HM E NT S :

Description
T raffic S ignal M aintenance Agreement

Page 2 of 12 ends

Page 3 of 12 ends

Page 4 of 12 ends

Page 5 of 12 ends

Page 6 of 12 ends

Page 7 of 12 ends

Page 8 of 12 ends

Page 9 of 12 ends

Page 10 of 12 ends

Page 11 of 12 ends

Page 12 of 12 ends

S T A F F R E P O R T
I T E M N O . 10.W .

B O B C R I TC H F I E L D, E N G I N E E R I N G M A N A G E R S U B J E C T :R E J E C T B I D A N D R E A D V E RT I S E P R O J E C T N O. 70 00 3 & 7 00 09 , C I T Y W I D E S T R I P I N G R E P L A C E M E N T (B I D N O. 20 22 -03 )

R E C O M M E N D E D A C T I O N
I t is rec om m en d ed that t he C i ty C oun cil rejec t th e b id rec eived for P roject N o. 70 00 3 & 70 00 9, C ityw id e S trip ing Rep lacem ent.

G O A L S T A T E M E N T
Th e p rop osed act ion is c on s is ten t wi th th e C ity's ob jec ti ve of usin g p u b l ic fun d s efficien tly for th e m aintenan ce of the C ity's p u b lic road w ay facilities.

B A C K G R O U N D
Th e C ity recen tly com p leted th e con stru ction d ocum ent for the rep lacem ent of ob literated traffic s trip in g an d p avem en t m arki ng s at various l ocat ion s al on g th e C ity's n orth/south arterial and collector road w ays. T he p roject scop e of w ork in clud es th e restrip ing of lan e lin es, ch ann elizing l in es, an d l eg en d s , alon g wi th th e ap p licat ion of a s lu rry seal treatm ent to the road w ay su rface on C am p us Avenu e, from th e 21 0 F reeway to 20 th S treet.

I S S U E S /A N A L Y S I S
Th e C ityw id e S trip in g P roject N ot ic e I n vi ti n g B id s (N I B ) was ad vert is ed in t h e I n lan d Valley D aily B u l let in on J uly 8 , 20 22 and J u l y 15 , 20 22 i n accord an ce with t h e C aliforn ia P ub lic C on tract C od e (S ect ion 2 01 64 ) an d was also l is ted on the C it y's web site. Typ ic all y, t he C ity also ad vertises w ith variou s electron ic p lan room s in clud in g B id A m erica, eb id b oard , D od g e,

Page 1 of 2 ends

C on stru ct C on nect and C onstruction B i d B oard , b ut i t w as in ad verten tl y n ot ad verti sed i n the electronic p lan room s for th is N I B.

A s a result, th e C it y recei ved an d op en ed on ly on e b i d for th e P rojec t, u n d er B id N o. 2 02 2-0 3 on J uly 27 , 20 22 , as follows:

B I D D E R B I D A M O U N T
S up erior Pavem ent M arkin g s, I n c.$4 57 ,23 5.7 5 G iven t h at th e b id received is su b s tan ti all y hig h er than t h e E n g i neer's est im ate of $3 09 ,89 0.4 0, st aff c on t act ed several s trip in g con tract ors th at th e C ity has w orked with i n the p ast t o fi n d ou t w hy only on e b id w as rec eived . A few of t h e con tract ors i nd icated t hey d id not s ee th e p roject an d ot hers in d i cat ed t hey d id n't w an t to b i d wi th a s lu rry seal t ied to the p roject.

O ver th e p ast few w eeks, t he C ity revis ed t he S p ecification s for t he P roject an d rem oved the C am p u s Aven u e sl u rry seal p ort ion from t h e sc op e of work (wh ich w i ll b e i nc lu d ed as p art of th e C i ty's ann ual slu rry seal p rog ram i n th e S p rin g of 20 23 ). W ith t h e C i ty C ou ncil's ap p roval of th e b id reject ion , the C it y wi ll im m ed iately re-ad vertise t h e p roject for b id . T he ob jective is to award the p roject in O ctob er an d com p lete th e im p rovem en ts w ithin three m on th s.

F I S C A L I M P A C T S
W hile t here is n o cos t associated w it h rejecting th e b i d , re-ad vert isin g t h e p roject w il l cost ap p roxim ately $3 ,00 0. H owever, reb id d ing is ant ic ip ated t o result in m ore com p et it ive b id s, effectuatin g a savin g s hig h er than th e re-ad vertisem en t cost.

A L T E R N A T I V E S

1. Aw ard b id t o S u p eri or Pavem en t M arking s, I n c., t his alt ern ati ve wi ll req u ire an ad d ition al ap p rop riation of $18 5,0 00 from th e G as Tax F u nd .

2. P rovid e altern ative d irection to staff.

AT TAC HM E NT S :

Description
No Attachments Available

Page 2 of 2 ends

S T A F F R E P O R T
I T E M N O . 10.X .

M I K E K I TC H E N , S P E C I A L F L E E T C O N S U LTA N S U B J E C T :C O N S I D E R A P P R O V A L O F A P O L I C E T R A F F I C D I V I S I O N

M OTO R C Y C L E P U R C H A S E O R D E R A N D A L LO C A T I O N O F F U N D S

R E C O M M E N D E D A C T I O N
I t is recom m en d ed t h at t h e C i ty C ou n c il ap p rove an ad d i ti onal allocation of fu nd s in the am ou nt of $3 7,2 57 .38 from C O P S F un d 2 16 Year 1 7/1 8 fu n d in g an d ap p rove th e p u rc h as e of a 20 23 B M W R 1 25 0 RT-P Police M otorcycle from B M W M otorcycles of R iversid e.

G O A L S T A T E M E N T
Th e p rop osed action su p p orts th e on g oing long -term C ity-wid e fleet rep lacem ent an d m od ern ization p rog ram .

B A C K G R O U N D
A s p art of th e C ity’s l ong -term fleet rep lac em en t and m od ern izati on p rog ram , t he F leet M aintenan ce D ivi si on w orks w it h all th e C it y’s D ep artm en t s on d esig n in g , acq u i si ti on , an d vehicle rep l acem en t s. T h e Traffic D ivision of th e Pol ic e D ep artm ent is req u est in g t he p urch ase of a new 20 23 B M W R 1 25 0 R T-P Police M otorcycle. T he Traffic D ivision curren tly h as th ree fron t li n e B M W M otorcycles an d on e H ond a M otorcyc le for train in g . W it h t he ad d ition of a new full tim e officer to th e Traffic D ivision, an ad d ition al m otorcycle is n eed ed .

I S S U E S /A N A L Y S I S
Th e C i ty w ill b e p urch asing th e m otorcyc le from B M W M otorcycle of R i versid e on a p ig g y-b ack b id wi th t he C ity of Font ana. Th is p rocurem en t p roc ess m eets the S tat e of C alifornia’s coop erative p u rc h as in g cod e 65 00 & 6 50 2 an d U p lan d m un icip al cod e secti on 2 .48 .08 0

Page 1 of 11 ends

allow in g the C it y to d is p en se w i th the b id d ing p roced ures wh en t he p u rch ase i s b en efi ci al to th e in terest s of t h e C ity an d i s from a su p p lier wh o h as b een award ed a con tract resu ltin g from a form al com p etitive b id d in g p rocess b y an oth er g overn m en tal ag en cy.

F I S C A L I M P A C T S
F u nd in g for th e p u rchase of th e m ot orc ycl e w as n ot i n c lu d ed in th e F Y 2 2 /2 3 op eratin g b u d g et. F u n d s b alan ce from org 2 16 32 69 (C O P S Year 1 7 /1 8 fun d i ng ) in t h e am ou nt of $3 7,2 57 .38 is b eing req uested to com p lete th e p u rchase of th e 20 23 B M W m otorcycle.

A L T E R N A T I V E S
P rovid e altern ative d irection to staff.

AT TAC HM E NT S :

Description
City of Upland Quotation
City of Fontana Quotation

Page 2 of 11 ends

Page 3 of 11 ends

Page 4 of 11 ends

Page 5 of 11 ends

Page 6 of 11 ends

Page 7 of 11 ends

Page 8 of 11 ends

Page 9 of 11 ends

Page 10 of 11 ends

Page 11 of 11 ends

S T A F F R E P O R T
I T E M N O . 11.A .

D A T E :S ep tem b er 12 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : R O B E R T D. D A L Q U E S T, D E V E LO P M E N T S E R V I C E S D I R E C TO R

LO R A L E E FA R R I S, P L A N N I N G M A N A G E R S U B J E C T :C O N S I D E R A T I O N O F Z O N I N G C O D E A M E N D M E N T N O. Z A-22 - 00 01 TO M A K E V A R I O U S C H A N G E S TO T H E U P L A N D M U N I C I PA L C O D E R E A R D I N G “S M O K E S H O P S ”, “M A S S A G E T H E R A P Y” A N D “S M O K E LO U N G E /E -V A P E /H O O K A H LO U N G E ”

R E C O M M E N D E D A C T I O N
I t is rec om m en d ed that t he C i ty C oun cil hol d first read in g b y ti tl e only, wai ve fu rt h er read in g , and i n t rod u c e an O rd inan ce am en d i n g U p lan d M un icip al C od e Tab le 17 .04 -1 (Perm i tt ed Lan d Uses i n th e Resi d en ti al Zones), Tab le 17 .05 -1 (Perm i tt ed L and U ses in the M ixed -U s e Zon es), Tab le 17 .06 -1 (Perm itt ed L an d U ses in th e C om m ercial Z on es ), Tab le 1 7 .0 7 -1 (Perm i tt ed Lan d Uses in t he I n d u st rial Z ones ), Tab l e 1 7.0 8-1 (Perm i tt ed L an d U ses i n th e S p ec ial P u rp ose Zones), C h ap t er 1 7.2 9 (M ass ag e Th erap y) and C h ap t er 1 7.5 1 (D efi ni ti ons ), an d ad d in g new C h ap ter 1 7.4 2.5 p ertain in g t o sm oke s hop s, m assag e th erap y estab lish m en ts, and sm oke lou ng es/e-vap e/hookah loun g es (S ee E xh ib it 1 ), and find in g th e O rd i nan ce to b e exem p t from th e C alifornia E nviron m en tal Q uality A ct.

G O A L S T A T E M E N T
Th e p rop os ed act ion sup p orts th e C it y’s g oals of m ai n t ain in g th e Zon in g C od e to ensure the com p atib ility of l and uses that h ave th e p ot ent ial for im p ac ts on surrou nd in g d evelop m en t th rou g h effec ti ve d es ig n p rincip les, ad eq uate b u fferin g , an d evaluat in g op eration al ch aracteristics; c ons id eri ng th e c onc ent rat ion of s uc h u s es in lan d u se d ec is ion s, as i t relates to s m oke sh op s an d m ass ag e th erap y estab lish m en ts; an d m ain taining a sustai nab le b u siness environ m en t that su p p orts local g row th , in vestm en t, an d revitalization .

Page 1 of 32 ends

B A C K G R O U N D
O n M arch 28 , 20 22 , th e C ity C ou n c il h el d a d iscu ssion on th e n u m b er of sm oke shop s an d m assag e estab lish m en ts wi th in t h e C ity, as wel l as op t ion s availab le for reg ul ati ng t h es e typ es of b usin esses to en s u re com p atib ility b etween ad jacen t lan d u ses an d p reven t over- con cen tration. Th e C ity C ou n c il st res sed th e im p ortan ce of m ai n t ain in g t he com m un ity’s vision of th e c it y, w hile st il l all ow in g b usin ess op p ortu nities. Th e C ou n ci l d irect ed st aff t o b rin g th is top ic to th e P lan n i n g C om m is si on to d iscu ss am end in g th e C it y’s M u n i ci p al C od e, p rior to b rin g ing an ord inan ce forw ard for action.

O n M ay 2 5, 2 02 2, th e P l an n in g C om m ission h el d a p ub lic worksh op to d is cu ss p oten tial am en d m ents to the U p lan d M un icip al C od e reg ard in g th e reg ulation of sm oke s hop s an d m assag e est ab l is h m en t s. D u rin g th e w orks h op , staff p res en t ed op t ion s for t he C om m ission ’s d iscussion, w h ic h in cl u d ed th e p oten ti al to li m i t th e zon i n g d is tric ts t he uses are p erm itted w ithin, est ab l is h i n g a req uirem ent for a con d itional u se p erm it , an d estab li sh in g sp ecific locational criteria for sm oke shop s, in p articular, wh ich inclu d ed a 1,0 00 -foot b uffer b etw een sen sitive uses an d existin g sm oke shop s.

Th e P lan ni ng C om m is si on concurred t h at ad d ition al reg ulations of these land u ses w ere necessary an d in the interest of p ub lic h ealth, safety, an d welfare an d d irected staff to return w ith an ord i n an ce for revi ew in a p u b lic hearin g . Th e C om m i ss ion recom m end ed that b oth sm oke sh op s an d m assag e estab lish m en ts req u i re ap p roval of a C on d i ti on al U se Perm it an d recom m end ed ad d in g criteria for sm oke sh op s to allow th e C om m ission to b etter assess com p atib ility of th e p rop osed u se at a s p ec ifi c loc ati on on a c ase-b y-cas e b asi s. T he C om m ission , h ow ever, exp ress ed con cern reg ard ing p enalizin g existi ng s m oke sh op an d m assag e estab lish m en ts op erat in g su ccessful ly w it hi n th e C it y b y am en d in g th e reg u lat ion s in a way th at w oul d cau se th ese existin g b u sinesses t o b ecom e n on-c onform i ng an d su b jec t to a 10 -year am ort izati on p eri od . A n am ort ization p eri od w ould req u ire b usin esses t o cease op erating or relocate to a new location to an allow ab le zon in g d istrict an d ob tain a cond ition al use p erm i t w ithin 1 0-years of th e effective d at e of t he new reg u lat ion s. Th e C om m ission rather recom m end ed t h at t he al lowab le zon in g d istricts rem ain as-is, and est ab l is h location stand ard s as p art of con sid erin g ap p roval/d en ial of a c on d it ion al u se p erm it rat her t h an zon in g d evelop m ent stan d ard s, wi th t h e excep ti on of rem ovin g sm oke shop s and s m oke lou n g es from th e O ffi ce P rofess ion al zoni ng d is tric t, wh ich is larg ely ad jacen t to S an A n ton io Reg ion al H osp ital. T here are n o affected b usin esses curren tly op erating w ithin this d istrict.

O n J u l y 2 7, 20 22 , th e P lan ni ng C om m ission h eld a P u b li c H eari ng on th e p rop ert y Zon in g C od e A m en d m en t, and b y a vot e of 4-0 (tw o C om m i ss ion ers ab sen t, one vacan cy), recom m end ed th at th e C it y C ou n ci l am end Tab le 1 7.0 4-1 , Tab l e 1 7.0 5-1 , Tab l e 1 7.0 6-1 , Tab le 17 .07 -1, Tab le 17 .08 -1, C h ap ter 1 7.5 1, C hap ter 17 .29 an d ad d n ew C h ap t er 17 .42 .5 p ertaining t o s m oke sh op s and m assag e est ab l is h m en t s. Th e C om m issi on als o recom m end ed th at th e O rd i n an ce is statu torily exem p t from th e C alifornia E n vironm ent al Q u al it y A ct (C E Q A ) p u rsu an t to S tat e C E Q A Reg u lat ion §1 50 61 (b )(3 ) (14 C al . C od e Reg s. § 1 50 61 (b ) (3)), th e “com m on s en s e” exem p ti on covering ac ti vit ies w it h n o p ossib il it y of h avin g a sig n ifican t effect on the environ m en t b ecause the O rd in ance m erely u p d ates reg u latory g u id elines for sm oke shop s an d m assag e therap y estab lish m en ts.

I S S U E S /A N A L Y S I S
Th e reg ulation of sm oke shop s is n ecessary and in th e in terests of p ub lic h ealth, safety an d g en eral wel fare. T he C i ty h as a sub stantial i n t eres t i n d iscou rag in g th e il leg al p urch ase of tob acco p rod u c ts b y m in ors, as w ell as p rom oting c om p li an c e w it h all fed eral, s tat e, and local laws p ertaining to tob acco sales and use.

Reg u lation s w ou l d al low t he ci ty t o set zon in g an d locati onal req uirem ents to b oth con trol the over-concentration of sm oke sh op s an d lim it th eir p roxim it y to sen sitive us es i n vol vin g youth, w hich c oul d inclu d e sc hool s, p arks, l ib raries , com m u nity cen ters, an d d ay care cen ters. T he

Page 2 of 32 ends

C en ter for D i seas e C on trol and P reven ti on (C D C ) p rovid es fact s reg ard ing you th an d tob acco use on th eir web si te, statin g th at tob acc o p rod u ct u se is st art ed an d est ab l is hed p rim arily d u ring ad olescen ce, w it h an estim at ed 1,6 00 youth tryin g th eir fi rs t cig aret te in t h e coun ty every d ay, an d ap p roxim ately 7 .6% of m in ors sel f-rep ort t hat they’ve u s ed e-cig arett es w ithin th e last 3 0 d ays.

A d d itionally, staff’s research in to oth er cities th at have estab lished ad d itional reg u lation s in d icate th at the cities d rew a relationship b etween a p roliferation and con cen tration of sp ecific p erson al servic e u s es, l ike s m oke s h op s an d m ass ag e es tab li sh m en ts , over t he p ast years to an increase in p olice calls, crim e, illeg al activit y, and d rug use, w hich led to an im m inen t th reat to the p u b lic p eace, health , safety, and welfare on b u sinesses an d resid ents. C ities also cited an ad verse effec t on com m erci al lease rat es, w hich resu lt ed in at tract in g les s d esirab le and m ore p rob lem atic b u sinesses in som e of th eir com m ercial centers.

C urrent R egulatio ns

P resen tly, the C ity of U p l and ’s M u n i ci p al C od e d oes n ot d i fferen ti ate sm oke s h op s from oth er retail u ses. A s su ch , u n d er curren t reg u l ati on s , a sm oke sh op could b e est ab l is h ed anywh ere in t h e C it y th at a retail u se wou ld b e p erm i tt ed . I n t he case of m assag e therap y estab lishm ents, a m ass ag e op erat or’s p erm it (M O P ) is req u i red in the zones w here it is p erm itted .

Th e cu rrent reg u l ati on s in t h e Zoning C od e for th ese u ses are p rovid ed in E xh i b i t 2 an d d ep ict th e zon es wh ere they are allow ed /n ot allowed , and if they are p erm itted -b y-rig h t, allowed w ith a con d i ti onal u s e p erm it, or al lowed with an ad m i n i st rat ive use p erm it. S taff has p rovid ed an electronic cop y of the C ity's cu rrent Zoning M ap for referen ce (S ee E xhib it 3 ).

Pro po sed R egulatio ns

Th e ord in ance w ould incorp orate th e follow in g ob jectives:

E stab lish a form al d efi n i ti on for S m oke S h op s un d er S ect ion 1 7.5 1.0 10 as well as reg ulations an d crit eri a i n revi ew in g cond ition al use p erm it s for S m oke S h op s w it h i n a newly created C h ap ter 1 7.4 2.5 (S m oke S h op s).

A m end th e p erm i tt ed l an d u s e tab les t o req ui re a C on d it ion al U se Perm it for n ew S m oke S h op s in th e C /R-M U (C om m erci al/Res id ent ial – M ixed U se), B /R-M U (B u siness/Resid ential – M ixed Use), C /O -M U (C om m erc ial /O ffic e – M i xed U s e), C /I -M U (C om m ercial/I nd ustrial – M ixed Use), N C (N eig h b orhood C om m ercial), H C (H ig hway C om m ercial), an d R C (Reg ional C om m erc ial ) d i st ri ct s, an d rem ove S m oke S h op s as a p erm itted u se in the O P (O ffice P rofession al) d istrict.

A m end th e d efinition for S m oke L oun g e/Tob acco S hop /E -vap e/H ookah un d er S ection 17 .51 .01 0 to rem ove reference to Tob acco S hop s.

A m end Tab le 1 7.0 6-1 (Perm itted Lan d U ses in t he C om m erc ial Zon es) t o rem ove S m oke L oun g e/E -Vap e/H ookah Lou ng e as a con d itionally p erm it ted use in th e O ffice P rofession al zone.

A m end C h ap t er 17 .29 for M assag e T h erap y t o li st t he req uirem ent for a C on d i ti onal U se Perm it p u rsu an t to the exis ti n g lan d u se tab les , w hi ch allow t h e u se with ap p roval of a C on d itional U se Perm it in th e C /R-M U (C om m ercial/Resid ential – M ixed U s e), B /R-M U (B u siness/Resid ential – M ixed Use), C /O -M U (C om m erc ial /O ffic e – M i xed U s e), C /I -M U (C om m ercial/I nd ustrial – M ixed Use), N C (N eig h b orhood C om m ercial), H C (H ig hway C om m ercial), an d R C (Reg ion al C om m ercial), and O ffice P rofession al (O P ) zon es.

S m oke S h op s w ould b e d efined as follows:

A retai l est ab l ishm ent that eit h er exc lu si vely sells or has m ore t h an fi ve p ercent (5%) of their floor area d ed icated to th e sal e, d isp lay, d i st ri b u ti on , d eli very, or m arket in g of tob acco, tob acco p rod ucts an d sm okin g p arap h ern ali a b u t d oes n ot p rovid e for on -p rem i ses u se of

Page 3 of 32 ends

tob acco p rod u ct s. Tob acco sh all m ean an y p rep aration of the n ic oti ne-ric h leaves of the tob acco p lan t for sm okin g , vap ing , h ealing , inh aling , chewing , ab sorb ing , d issolvin g , or in g esting b y an y oth er m ean s. Tob acc o p rod u cts m ay in cl u d e, b u t are n ot li m i ted to:
cig arettes, c ig ars , e-cig aret tes, vap orizers or si m i lar elect ron ic d evi ces t hat d el iver n icoti ne to th e p erson in halin g from t he d evic e, h ookah s, p ip es, b on g s, an d relat ed d evic es for h old in g b u rn in g m aterial.

Th is w ould lim it th e sm oke sh op categ ory to th ose u ses th at sp ecialize in tob acco sales an d related p rod u c ts . U ses th at on ly in cl u d e tob acco an d t ob ac co p rod ucts as an an cillary com p on ent of th eir sales (5% or less), s u c h as g rocery st ores or con venience stores, w ou l d n ot b e sub ject to the sm oke shop reg ulations.

Th e A m end m en t also ad d s new C hap ter 1 7 .4 2 .5 to es tab li sh factors t o consid er i n g rantin g C on d itional Use Perm its for sm oke sh op s, w hich w ould inclu d e:

1. P roxim ity of th e use to resid en tial structu res and resid ential d istrict b ou nd aries, an d sen sitive u ses , in clud in g p arks, p layg rou nd s, sc hool s, d ay c are centers or p reschools, and lib raries.

2. N atu re of u ses on the sam e, ad jacen t, an d n earb y p rop erties.

3. Th e p resen ce of on e or m ore sm oke shop s with in 10 00 feet of the p rop osed use.

4. Th e com p atib ility of th e use’s op eration al characteristics with th ose of surrou nd in g com m ercial u ses.

5. Th e d esi g n of p rop os ed i m p rovem en t s (i f an y) relat ed t o th e use, w ith p articular reference to d esig n ch aracteristics th at h ave th e effect of red ucin g or elim inatin g im p acts to surrou nd in g u ses.

Th ese fact ors w ould all ow th e P lan ni ng C om m is si on t he ab i li ty t o c on s id er a p rop os ed sm oke sh op ’s l ocat ion to d et erm in e com p at ib ilit y w i th su rroun d ing u ses , in cl ud in g th ose t hat are sen sitive (s u c h as res id en t ial u s es an d t h os e us es caterin g t ow ard s m in ors), th e con cen tration of s m oke shop s in th e i m m ed i ate area, t he sm oke sh op ’s op erational c haract eri st ic s, an d d esig n im p rovem en ts as p art of t h ei r review w h en d ecid in g to ap p ly ap p rop riat e c on d it ion s of ap p roval to m in im ize th e ch ance of im p ac ts on t h e s u rrou n d in g area, ap p rove, or d en y the use.

Th is ch ap t er w ou l d als o es tab li sh op erat ion al req u i rem en t s for th e op erat ion of sm oke shop s, con sistent w ith state law, and in th e in terest of p u b lic health , safety, and w elfare. Th ese in clud e:

1. Th e b u siness s hal l c om p ly w i th all of t he c on d it ion s of th e con d itional us e p erm i t th at authorizes its op eration.

2. E ach s m oke shop sh all h old a valid C al iforn i a C i g arett e and Tob ac co P rod ucts Retailer’s L icense issu ed b y th e S tate B oard of E q u al izati on , i n accord ance w it h S tat e law, an d sh all b e p rom in ently d isp layed in a p ub licly visib le location at the estab lish m en t.

3. Th ere sh all b e n o s elf-s ervi ce d is p l ay or sales, i n c lu d i n g vend in g m ach in es, of tob acco or tob acco p arap h ern alia.

4. N o on-p rem ises u se of tob acco p rod ucts sh all b e p erm itted at an y tim e.

5. N o p erson w ho is you ng er th an th e m in im um ag e of eig hteen (18 ) years or as estab lished b y S tat e l aw sh all b e p erm it ted t o s ell , d isp lay, m arket, b arter, t rad e or exch ang e an y c om b in ati on of tob acco, t ob acco p rod u ct s, or sm oking or exc h an g e of tob acco p arap h ern alia, in clud in g electron ic sm okin g d evices an d accessories.

A m ap of existing s m oke sh op s , p rop osed zon es al lowi n g a con d i ti on al u se p erm i t, an d sen sitive uses h as b een inclu d ed to d em on strate th e effect th e b u ffers w ill h ave in E xhib it 4 .

Reg ard ing m assag e estab lishm ents, S ection 46 0 of the C aliforn ia B usin ess and P rofession s C od e rest ri ct s a c it y or coun ty from p roh ib itin g a p erson or g rou p of p ersons certified b y the C alifornia M ass ag e T herap y C oun cil (C A M TC ) from eng ag ing i n t heir b u si n es s, occu p at ion , or

Page 4 of 32 ends

p rofession . H owever, it d oes n ot p reven t a city or c ou n ty from ad op tin g an d enforci ng an ord in ance reg ulating zon in g , b usin ess licen sing , or reason ab le health and safety req uirem ents con cerning m assag e th erap y. C urren tly, t he C i ty reg u l ates m assag e t herap y u n d er C h ap ter 17 .29 of th e Zon in g C od e (S ee E xhib it 5), w hich p rovi d es reg u lat ion s to th e m axim u m exten t p ossib le un d er C alifornia law. Th e p rop os ed am en d m en t w ou ld am en d S ect ion 1 7 .2 9 .0 2 0 to sp ecify th at C on d itional U s e Perm it i s req u ired for n ew m assag e es tab li sh m en ts , in ad d i ti on to req uirem ents for m assag e op erator’s p erm it (review b y the Police D ep artm ent), b u siness licen se req uirem ents, and com p liance with T itle 15 (B uild in g and C onstruction) of the M u nicip al C od e.

Th e p rop osed ord inan ce wou ld am en d t he p erm it ted lan d u se t ab l es t o refl ect p oten tial reg ulations as shown in E xhib it 2 .

E nviro nm ental R eview

Th e action is exem p t from revi ew u n d er th e C ali forn ia E n vi ron m en tal Q u ali ty A c t ("C E Q A ") (C alifornia P u b lic Resou rces C od e S ection 21 00 0, et seq .), p u rsuan t to S tate C E Q A Reg ulation §1 50 61 (b )(3 ) (14 C al. C od e Reg s . § 1 50 61 (b )(3 )), the “c om m on sen se” exem p tion coverin g activities with n o p ossib ility of h avin g a si g n ifi can t effec t on t he en vironm ent b ec au s e the O rd in ance m erely up d ates reg ulatory g uid elin es for sm oke sh op s an d m assag e therap y estab lishm ents.

F I S C A L I M P A C T S
Th ere i s no fiscal im p act ass oci ated wi th ap p rovin g th e p rop osed O rd in an c e. N ew sm oke sh op s an d m assag e th erap y estab lishm ents w il l b e req u ired to p ay th e p roc ess in g fee for a C on d itional Use Perm it for staff’s cost in p rocessin g the ap p lication.

A L T E R N A T I V E S
Th e C ity C oun cil m ay p rovid e staff w ith alternative d irection .

AT TAC HM E NT S :

Description
Exhibit 1: S moke S hop and M assage T herapy Ordinance Exhibit 2: Current and Proposed Regulation Tables
Exhibit 3: Zoning M ap
Exhibit 4: M ap of Smoke Shops
Exhibit 5: Chapter 17.29 of the Zoning Code

Page 5 of 32 ends

ORDINANCE NO._______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

UPLAND, CALIFORNIA, AMENDING UPLAND MUNICIPAL
CODE TABLE 17.04.01 (PERMITTED LAND USES IN THE
RESIDENTIAL ZONES), TABLE 17.05-1 (PERMITTED LAND
USES IN THE MIXED-USE ZONES), TABLE 17.06-1
(PERMITTED LAND USES IN THE COMMERCIAL ZONES),
TABLE 17.07-1 (PERMITTED LAND USES IN THE
INDUSTRIAL ZONES), TABLE 17.08-1 (PERMITTED LAND
USES IN THE SPECIAL PURPOSE ZONES), CHAPTER 17.29
(MASSAGE THERAPY), AND CHAPTER 17.51
(DEFINITIONS), AND ADDING CHAPTER 17.42.5 (SMOKE
SHOPS), ZONING CODE TEXT AMENDMENT NO. ZA-22-
0001

WHEREAS, the City of Upland (“City”) has a substantial interest in discouraging the illegal purchase of tobacco products by minors, as well as promoting compliance with all federal, state and local laws pertaining to tobacco sales and use; and
WHEREAS, the City is authorized, by virtue of the State Constitution and California Government Code §51030 to regulate massage establishments by imposing reasonable conditions on the operation thereof; and WHEREAS, the City desires to amend its local regulations for smoke shops and massage establishments to promote the health, safety and welfare of the public, alleviate over-saturation of these uses within the City, and allow the uses to operate within the City in a manner and at such locations to maintain compatibility between surrounding land uses; and
WHEREAS, the City’s Municipal Code does not presently contain any individual regulations for smoke shops, other than those for a retail use; and

WHEREAS, on July 27, 2022 at 6:30 p.m. the Planning Commission conducted a duly noticed public hearing for the project, as prescribed by law, and heard and considered both oral and written evidence and adopted Resolution No. 4968 recommending that the City Council adopt an Ordinance amending the Zoning Ordinance Table 17.04-1 (Permitted Land Uses in the Residential Zones), Table

17.05-1 (Permitted Land Uses in the Mixed-Use Zones), Table 17.06-1 (Permitted Land Uses in the Commercial Zones), Table 17-07-1 (Permitted Land Uses in the Industrial Zones), Table 17.08-1 (Permitted Land Uses in the Special Purpose Zones), Chapter 17.29 (Massage Therapy), and Chapter 17.51 (Definitions), and adding Chapter 17.42.5 (Smoke Shops), in order to add a definition and regulations for smoke shops and amend regulations for massage therapy establishments to require a conditional use permit; and

WHEREAS, a notice of a public hearing on said application has been given in the manner and for the time required by law; and

WHEREAS, on September 12, 2022 at 7:00 p.m. the City Council conducted

Page 6 of 32 ends

Ordinance No.

Page 2 ends

a duly noticed public hearing for the project, as prescribed by law, heard and considered both oral and written evidence, and considered the entire record of information received at the public hearings before the Planning Commission and City Council.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF UPLAND DOES ORDAIN AS FOLLOWS:

Section 1. The above recitals are true and correct and are hereby incorporated herein by this reference.

Section 2. Findings. In approving the proposed Municipal Code amendment, the City Council hereby makes the following findings that the Ordinance is consistent with the General Plan as follows:

1. Finding: The proposed amendment is consistent with the General Plan and any applicable community or specific plan as provided by Government Code Section 65860.

Evidence: The proposed Smoke Shop and Massage Therapy
Ordinance does not conflict with any community or specific plan and is consistent with the following General Plan policies and goals:

A. Land Use Policy LU-6.2: Control the location, concentration and operations of land uses that have potential impacts on surrounding development through effective design principles, adequate buffering, and enforcement of regulatory documents.

Fact: The ordinance will be consistent with this policy, as it will address a concern regarding the compatibility of smoke shop and massage establishment uses with surrounding land use uses and allow for the ability to add conditions of approval to ensure such uses will not have a negative impact through their design and operational characteristics.

B. Healthy Community Policy HC-5.3: Consider the concentration of alcohol and/or tobacco retail outlets in land use decisions; consider regulating the permitting of additional alcohol and/or tobacco retail outlets where an undue concentration exists

Fact: The proposed ordinance will be consistent with this policy as it will allow the Planning Commission the ability to consider the concentration of tobacco retail outlets in land use decisions and will add additional criteria for the Commission to use as basis of evaluating undue concentration while considering a conditional use permit.

C. Healthy Community Goal HC-5: A community free of alcohol dependency, tobacco use, and drug abuse by creating an

Page 7 of 32 ends

Ordinance No.

Page 3 ends

environment that supports healthy choices, provides access to prevention and treatment services, and enforces laws that protect residents and the community.

Fact: The proposed ordinance will be consistent with this goal in the City’s General Plan, by setting responsible and appropriate regulations for smoke shops to ensure both a successful business environment but also allow for additional consideration in appropriate land uses through regulation of smoke shops through a conditional use permit process.

2. Finding: The proposed amendment will not be detrimental to the public interest, health, safety, or welfare of the City.

Evidence: The proposed Zoning Amendment is in the interest of public interest, health, safety, and welfare of the City for several reasons, and will not be detrimental. The City has an interest, as emphasized in the General Plan, in ensuring compatibility between uses, ensuring that land uses are established in such a manner and location where they will not have potential impacts on surrounding development, in discouraging the illegal purchase of tobacco products by minors, and in promoting compliance with all federal, state and local laws.

3. Finding: The proposed amendment is internally consistent with other applicable provisions of the Zoning Ordinance.

Evidence: The proposed amendment does not conflict with any other sections of the Zoning Ordinance.

Section 3. Table 17.04-1 (Permitted Land Uses in the Residential Zones) of Section 17.04.020 (Land Uses of Regulations for Residential Zones) of the Upland Municipal Code is hereby amended to add a line item for smoke shops, add dashes to the RS-20, RS-15, RS-10,, RS-7.5, RS-4, RS-MH, RM-10, RM-20, and RM-30 to indicate smoke shops are a use not allowed, add a reference to “Ch. 17.42.5” for Smoke Shops under Applicable Regulations, change “Smoke Lounge/Tobacco Shop/E-vape/Hookah” to “Smoke Lounge/E-vape/Hookah Lounge”, as shown below, with all other portions of Table 17.04-1 to remain the same:

TABLE 17.04-1 PERMITTED LAND USES IN THE RESIDENTIAL ZONES

Page 8 of 32 ends

Ordinance No.

Page 4 ends

Key
P Permitted Use
CUP Conditional Use
Permit Req.

AUP Admin. Use
Permit Req.
— Use Not Allowed
Residential Zones
Applicable
Regulatio
ns
RS-
20 RS-
15 RS-
10 RS-

7.5 RS-
4 RS-
MH
RM-
10 RM-
20 RM
-30
Commercial Land
Uses
Smoke Shops — — — — — — — — — Ch 17.42.5
Smoke Lounge/Tobacco
Shop/E-vape/Hookah
Lounge
— — — — — — — — —

Section 4. Table 17.05-1 (Permitted Land Uses in the Mixed-Use Zones) of Section 17.05.020 (Land Uses of Regulations for Mixed-Use Zones) of the Upland Municipal Code is hereby amended to add a line item for smoke shops, amend sub- note 6 to refer to Chapter 17.42.5, renumbered the former sub-notes 6 through 9 to 7 through 10, add “CUP” for each listed zone to designate that smoke shops require a Conditional Use Permit, add a reference to “Ch. 17.42.5” for Smoke Shops under Applicable Regulations, change “Smoke Lounge/Tobacco Shop/E-vape/Hookah” to “Smoke Lounge/E-vape/Hookah Lounge”, as shown below, with all other portions of Table 17.05-1 to remain the same:

TABLE 17.05-1 PERMITTED LAND USES IN THE MIXED-USE ZONES Key
P Permitted Use
CUP Conditional Use
Permit Req.

AUP Admin. Use
Permit Req.
— Use Not Allowed
Mixed-Use Zones
Applicabl
e
Regulatio
ns

C/R-MU B/R-MU C/O-MU C/I-MU
Commercial Land
Uses
Smoke Shops [6] CUP CUP CUP CUP Ch 17.42.5
Smoke
Lounge/Tobacco
Shop/E-vape/Hookah
Lounge [7]

CUP CUP CUP CUP
Temporary, Seasonal,
and Special Events [7
8] P P P P Ch. 17.41

Notes:
[1] Metal shipping containers designed to carry freight are prohibited.

Page 9 of 32 ends

Ordinance No.

Page 5 ends

[2] Guest houses shall only be permitted when a single-family dwelling is the primary use on the lot.
[3] Used vehicle sales are permitted on up to 20 percent of the sales space of a vehicle sales and leasing business.
[4] Markets may not be located less than 1,000 feet from another market. [5] See Chapter 17.16 (Property Maintenance and Use) for applicable screening and location standards for outdoor storage.
[6] See Chapter 17.42.5 (Smoke Shops).
[6 7] Not permitted as part of a food establishment, unless conducted outside.
[7 8] Only temporary off-site construction yards, mobile home residences, and work trailers are permitted pursuant to Chapter 17.41 (Temporary Use Permits and Film Permits).
[8 9] Administrative telecommunication facilities are prohibited on sites occupied by a residential use.
[9 10] Residential uses shall only be permitted within mixed-use and live/work developments, where each building on site meets the minimum floor area ratio requirement as specified in Section 17.05.030.”

Section 5. Table 17.06-1 (Permitted Land Uses in the Commercial Zones) of Section 17.06.020 (Land Uses of Regulations for Commercial Zones) of the Upland Municipal Code is hereby amended to add a line item for smoke shops, amend sub- note 4 to refer to Chapter 17.42.5, for smoke shops, renumber the former sub-notes 4 and 5 to 5 and 6, add “CUP” to the Neighborhood Commercial (NC), Highway Commercial (HC), Regional Commercial (RC) columns to designate that smoke shops require a Conditional Use Permit in these zones, add a dash in the Office Professional (OP) zone to designative that smoke shops are a use not allowed in this zone, for “Smoke Lounge/Tobacco Shop/E-vape/Hookah” remove the CUP for Office Professional and replace with a dash, to indicate it is a use not allowed, add a reference to “Ch. 17.42.5” for Smoke Shops under Applicable Regulations, change “Smoke Lounge/Tobacco Shop/E-vape/Hookah” to “Smoke Lounge/E-vape/Hookah Lounge”, as shown below, with all other portions of Table 17.06-1 to remain the same:

TABLE 17.06-1 PERMITTED LAND USES IN THE COMMERCIAL ZONES Key
P Permitted Use
CUP Conditional Use
Permit Req.

Page 10 of 32 ends

Ordinance No.

Page 6 ends

Key
P Permitted Use
CUP Conditional Use
Permit Req.

AUP Admin. Use
Permit Req.
— Use Not Allowed
Commercial Zones
Applicabl
e
Regulatio
ns
Neighborho
od
Commercial
(NC)
Highway
Commerci
al (HC)
Regional
Commercial
(RC)
Office
Professi
onal
(OP) Lounge/Tobacco
Shop/E-vape/Hookah
Lounge [4 5]
—
Swap Meets and Flea
Markets [5 6] — — — —
Notes:
[1] Metal storage containers are prohibited. Accessory structures shall only be permitted where there is a residential component in a residential or non-residential zone.
[2] Used vehicle sales are permitted on up to 20 percent of the sales space of a vehicle sales and leasing business.
[3] Markets may not be located less than 1,000 feet from another market. [4] See Chapter 17.42.5 (Smoke Shops).
[4 5] Not permitted as part of a food establishment, unless conducted outside.
[5 6] Swap meets and flea markets shall only be permitted as a temporary use per Chapter 17.41 (Temporary Use Permits and Film Permits).”

Section 6. Table 17.07-1 (Permitted Land Uses in the Industrial Zones) of Section 17.07.020 (Land Uses of Regulations for Industrial Zones) of the Upland Municipal Code is hereby amended to add a line item for smoke shops, add a dash in the Light Industrial (LI) and General Industrial (GI) zones to designative that smoke shops are a use not allowed in these zones, add a reference to “Ch. 17.42.5” for Smoke Shops under Applicable Regulations, change “Smoke Lounge/Tobacco Shop/E-vape/Hookah” to “Smoke Lounge/E-vape/Hookah Lounge”, as shown below, with all other portions of Table 17.07-1 to remain the same:

TABLE 17.07-1 PERMITTED LAND USES IN THE INDUSTRIAL ZONES Key
P Permitted Use
CUP Conditional Use
Permit Req.

AUP Admin. Use
Permit Req.
— Use Not Allowed
Industrial Zones
Light
Industrial
(LI)
General
Industrial
(GI)
Applicable
Regulations
Commercial Land
Uses
Smoke Shops — — Ch 17.42.5

Page 11 of 32 ends

Ordinance No.

Page 7 ends

Key
P Permitted Use
CUP Conditional Use
Permit Req.

AUP Admin. Use
Permit Req.
— Use Not Allowed
Industrial Zones
Light
Industrial
(LI)
General
Industrial
(GI)
Applicable
Regulations
Smoke
Lounge/Tobacco
Shop/E-vape/Hookah
Lounge — —

Section 7. Table 17.08-1 (Permitted Land Uses in the Special Purpose Zones) of Section 17.08.020 (Land Uses of Regulations for Special Purpose Zones) of the Upland Municipal Code is hereby amended to add a line item for smoke shops, add a dash in the Cable Airport (CA), Public/Institutional (PB/I), Open Space (OS), and Mining (M) zones to designative that smoke shops are a use not allowed in these zones, add a reference to “Ch. 17.42.5” for Smoke Shops under Applicable Regulations, change “Smoke Lounge/Tobacco Shop/E-vape/Hookah” to “Smoke Lounge/E-vape/Hookah Lounge”, as shown below, with all other portions of Table

17.08-1 to remain the same:

TABLE 17.07-1 PERMITTED LAND USES IN THE SPECIAL PURPOSE ZONES

Key
P Permitted Use
CUP Conditional Use
Permit Req.

AUP Admin. Use
Permit Req.
— Use Not Allowed
Special Purpose Zones
Cable
Airport
(CA)
Public/
Institutional
(PB/I)
Open
Space
(OS)
Mining
(M)
Applicable
Regulation
s
Commercial Land
Uses
Smoke Shops — — — — Ch. 17.42.5
Smoke
Lounge/Tobacco — — — —

Page 12 of 32 ends

Ordinance No.

Page 8 ends

Key
P Permitted Use
CUP Conditional Use
Permit Req.

AUP Admin. Use
Permit Req.
— Use Not Allowed
Special Purpose Zones
Cable
Airport
(CA)
Public/
Institutional
(PB/I)
Open
Space
(OS)
Mining
(M)
Applicable
Regulation
s
Shop/E-vape/Hookah
Lounge

Section 8. Section 17.29.020 of the Upland Municipal Code is hereby amended to amend the title of this section from “Operator’s Permit Required” to “Permits Required”, and add the statement after “but not limited to” to include “obtaining approval of a conditional use permit in accordance with Section

17.44.040”, as shown below, with all other portions of Section 17.29.020 to remain the same:

“17.29.020 Operator’s Permits Required

It is unlawful for any person to engage in, conduct or carry on, or to permit the engagement in, conduct of or carrying on the business or operation of a massage establishment within the City without first obtaining an operator’s permit pursuant to the provisions of this chapter, and complying with all other applicable provisions of this code, including, but not limited to, obtaining approval of a conditional use permit in accordance with Section 17.44.040, securing the necessary business license and complying with Title 15 of this code.”

Section 9. Chapter 17.42.5 of the Upland Municipal Code is hereby amended in its entirety to read as follows:

“Chapter 17.42.5 SMOKE SHOPS

17.42.5.010 Purpose

The purpose of this chapter is to establish standards and review criteria for smoke shops in the interests of public health, safety and general welfare.

17.42.5.020 Applicability

This chapter applies to all smoke shops as defined in Section 17.51.010 of Chapter 17.51 of the Upland Municipal Code.

17.42.5.030 Authority

Page 13 of 32 ends

Ordinance No.

Page 9 ends

Smoke shops require a Conditional Use Permit in the C/R-MU, B/R-MU, C/O- MU, CI/MU, NC, HC, and RC zones, which is a discretionary action approved by the Planning Commission. Refer to Part 5 (Land Use and Development Approval Procedures) of the Zoning Ordinance for permit application procedures.

17.42.5.040 Factors Considered In Granting Conditional Use Permits

In addition to the findings required In Section 17.44.040 of this title, the Planning Commission may consider the following factors in determining whether to issue a conditional use permit, or in applying conditions of approval.

1. Proximity of the use to residential structures and residential district boundaries, and sensitive uses, including parks, playgrounds, schools, day care centers or preschools, and libraries.

2. Nature of uses on the same, adjacent, and nearby properties.

3. The presence of one or more smoke shops within 1000 feet of the proposed use.

4. The compatibility of the use’s operational characteristics with those of surrounding commercial uses.

5. The design of proposed improvements (if any) related to the use, with particular reference to design characteristics that have the effect of reducing or eliminating impacts to surrounding uses.

17.42.5.050 Operational Requirements

1. The business shall comply with all of the conditions of the conditional use permit that authorizes its operation.

2. Each smoke shop shall hold a valid California Cigarette and Tobacco Products Retailer’s License issued by the State Board of Equalization, in accordance with State law, and shall be prominently displayed in a publicly visible location at the establishment.

3. There shall be no self-service display or sales, including vending machines, of tobacco or tobacco paraphernalia.

4. No on-premises use of tobacco products shall be permitted at any time.

5. No person who is younger than the minimum age of eighteen (18) years or as established by State law shall be permitted to sell, display, market, barter, trade or exchange any combination of tobacco, tobacco products, or smoking or exchange of tobacco paraphernalia, including electronic smoking devices and accessories.”

Section 10. Section 17.51.010 Definitions of the Upland Municipal Code is

Page 14 of 32 ends

Ordinance No.

Page 10 ends

hereby amended to amend the definition of “Smoke Lounge/Tobacco Shop/E- vape/Hookah” to reflect the updated definition term of “Smoke Lounge/E- vape/Hookah Lounge”, strike “Tobacco Shop” from the text of the definition, update the term for “Hookah” as “Hookah Lounge” in the text of the definition, and add a definition for “Smoke Shop”, as shown below, with all other portions of Section

17.51.010 to remain the same:

Term Definition
Smoke
Lounge/Tobacco
Shop/E-
vape/Hookah
Lounge
“Smoking Lounge/Tobacco Shop/E-vape/Hookah
Lounge” refers to an establishment that is dedicated, in whole or part, to providing tobacco or other substances for smoking by patrons on the premises for a fee,
including but not limited to establishments known as
cigar lounges, hookah lounges, tobacco clubs, tobacco
bars, e-vape or similar use (i.e., e-cigarette, e-hookah, vape pen, etc.). Does not include a “retail or wholesale tobacco shop,” which sells tobacco products and smoking accessories, but does not provide for on-premises use of tobacco products.

Smoke Shop
A retail establishment that either exclusively sells or has more than five percent (5%) of their floor area dedicated to the sale, display, distribution, delivery, or marketing of tobacco, tobacco products and smoking paraphernalia
but does not provide for on-premises use of tobacco
products. Tobacco shall mean any preparation of the
nicotine-rich leaves of the tobacco plant for smoking,
vaping, healing, inhaling, chewing, absorbing,
dissolving, or ingesting by any other means. Tobacco
products may include, but are not limited to: cigarettes, cigars, e-cigarettes, vaporizers or similar electronic
devices that deliver nicotine to the person inhaling from the device, hookahs, pipes, bongs, and related devices
for holding burning material.

Section 11. Compliance with California Environmental Quality Act. This Ordinance is exempt from review under the California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000, et seq.), pursuant to State CEQA Regulation §15061(b)(3) (14 Cal. Code Regs. § 15061(b)(3)), the common sense exemption covering activities with no possibility of having a significant effect on the environment because the Resolution does not result in any actual development, and only updates regulatory guidelines for smoke shops and massage therapy establishments.

Section 12. Severability. If any section, subsection, subdivision, sentence, or clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this

Page 15 of 32 ends

Ordinance No.

Page 11 ends

Ordinance or any part thereof. The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases are declared unconstitutional, invalid, or ineffective.

Section 13. Effective Date. This Ordinance shall become effective thirty (30) days from its adoption.

Section 14. Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published in a newspaper of general circulation printed and published within the City of Upland, pursuant to all legal requirements.

PASSED, APPROVED, AND ADOPTED this ___ day of _________, 2022.

Bill Velto, Mayor

I, Keri Johnson, City Clerk of the City of Upland, California, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Upland held on the 12th day of September, 2022, and was adopted at a regular meeting of the City Council of the City of Upland on the ____ day of __________, 2022, by the following roll call vote:

AYES:

NOES:

ABSENT:

ABSTAINED:

ATTEST:

Keri Johnson, City Clerk

Page 16 of 32 ends

Exhibit 2
Current and Proposed Regulations
The City’s current regulations for Smoke Shops (covered under retail use), Smoke Lounge/Tobacco Shop/E-vape/Hookah, and Massage Establishments are as indicated in Table 1.

Table 1: City of Upland – Current Regulations
Key
P
CUP
AUP
MOP
---

Permitted Use
Conditional Use Permit Req.

Admin. Use Permit Req.

Massage Operator’s Permit
Use Not Allowed
Mixed-Use Zones Commercial Zones
C/R-
MU
B/R-
MU
C/O-
MU
C/I-

MU NC HC RC OP
Land Uses
Smoke Shops (Covered under retail
use)

P P P P P P P P
Smoke Lounge/Tobacco Shop/E-
vape/Hookah

CUP CUP CUP CUP CUP CUP CUP CUP
Massage Establishments MOP MOP MOP MOP MOP MOP MOP MOP
C/R – MU (Commercial/Residential Mixed-Use)
B/R – MU (Business/Residential Mixed-Use)
C/O – MU (Commercial/Office Mixed-Use)
C/I – MU (Commercial/Industrial Mixed-Use)
NC (Neighborhood Commercial)
HC (Highway Commercial)
RC (Regional Commercial)
OP (Office Professional)

The proposed Ordinance would amend regulations for these uses as illustrated in Table 2.

Table 2: City of Upland – Potential Regulations
Key
P
CUP
AUP
MOP
---

Permitted Use
Conditional Use Permit Req.

Admin. Use Permit Req.

Massage Operator’s Permit
Use Not Allowed
Mixed-Use Zones Commercial Zones
C/R
-MU
B/R-
MU
C/O-
MU
C/I-

MU NC HC RC OP
Land Uses
Smoke Shops CUP CUP CUP CUP CUP CUP CUP ---
Smoke Lounge/E-Vape/Hookah
Lounge

CUP CUP CUP CUP CUP CUP CUP ---
Massage Establishments CUP CUP CUP CUP CUP CUP CUP CUP
C/R – MU (Commercial/Residential Mixed-Use)
B/R – MU (Business/Residential Mixed-Use)
C/O – MU (Commercial/Office Mixed-Use)
C/I – MU (Commercial/Industrial Mixed-Use)
NC (Neighborhood Commercial)
HC (Highway Commercial)
RC (Regional Commercial)
OP (Office Professional)

Page 17 of 32 ends

Page 18 of 32 ends

San Bernardino County, Bureau of Land Management, Esri, HERE, Garmin, GeoTechnologies, Inc., NGA, USGS
µCity Boundary
SmokeShopLocation_Buffer
SmokeShopLocation
Library
parks
School_Sites

Page 19 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 1/13 Upland, California Municipal Code
Title 17 ZONING ORDINANCE
Part 4 SPECIAL LAND USE REGULATIONS
Chapter 17.29 MASSAGE THERAPY

17.29.010 Purpose

17.29.020 Operator ’s Permit Required

17.29.030 Exemptions

17.29.040 Massage Establishment Application

17.29.050 Massage Establishment Operator ’s Permit Application Requirements

17.29.060 Massage Establishment Design Standards

17.29.070 Massage Establishment Performance Standards

17.29.080 Inspections

17.29.090 California Massage Therapy Council Certification

17.29.100 Denial, Suspension or Revocation of Operator ’s Permit

17.29.110 Notice for Denial, Suspension or Revocations

17.29.120 Appeals

17.29.130 Procedure for Compliance for Existing Establishments

17.29.140 Transfer or Assignment

17.29.010 Purpose
This chapter provides standards for massage establishments, massage owners or operators, massage practitioners, and massage therapists as defined in Part 7 (Definitions). These standards are intended to:

A. Protect the public health, safety, and welfare; B. Ensure that the establishment and conduct of massage establishments is properly regulated; and

Page 20 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 2/13 C. Establish the minimum qualifications for operating a massage establishment in the City of Upland. (Ord. 1919 § 2, 2017)

17.29.020 Operator ’s Permit Required
It is unlawful for any person to engage in, conduct or carry on, or to permit the engagement in, conduct of or carrying on the business or operation of a massage establishment within the City without first obtaining an operator’s permit pursuant to the provisions of this chapter, and complying with all other applicable provisions of this code, including, but not limited to, securing the necessary business license and complying with Title 15 of this code. (Ord. 1919 § 2, 2017)

17.29.030 Exemptions
The provisions of this chapter shall not apply to the following classes of individuals or businesses while engaged in the performance of the duties of their respective professions:

A. Physicians, surgeons, chiropractors, osteopaths, or physical therapists who are duly licensed to practice their respective professions in the state of California, provided such professionals are lawfully performing massage, as defined in this chapter, at a licensed business as part of their respective professions, and further provided, massage or massage establishment activities are not being performed at any time by any person who is required to but does not possess a massage practitioner or massage therapist certification pursuant to this chapter;
B. Registered or licensed vocational nurses working on the premises of and under the direct supervision of a state-licensed physician, surgeon, chiropractor, or osteopath. Practical nurses or other persons that do not meet the requisite qualifications to obtain a massage practitioner or massage therapist certification under this chapter, or any other person otherwise licensed by the state of California, whether or not employed by a physician, surgeon, chiropractor or osteopath, may not provide massage services or act as a massage practitioner or massage therapist; C. Barbers, beauticians, and manicurists who are duly licensed by the state of California while engaging in the practice within the scope of their respective licenses, for which this exemption applies solely to the massaging of the neck, face, and/or scalp of the customer of a barber or beautician, or massaging of the forearms, hands, calves, and/or feet of the customer of a licensed manicurist; D. Hospitals, nursing homes, sanitariums, or other health care facilities duly licensed by the state of California;
E. Fully accredited high schools, junior colleges, and colleges or universities whose athletic coaches and trainers are acting within the scope of their employment; F. Trainers of amateur, semiprofessional, or professional athletes or athletic teams; G. Massage conducted in the course of education at any recognized school of massage, as defined in this chapter. (Ord. 1919 § 2, 2017)

Page 21 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 3/13

17.29.040 Massage Establishment Application
A. Any person desiring to operate a massage establishment shall submit a written application under penalty of perjury on the required form to the Chief of Police, who shall conduct an investigation. The application shall be accompanied by a non-refundable filing fee established by separate resolution of the City Council to help defray the cost of the investigation required by this chapter.

B. The application shall be completed and signed by the owner of the proposed massage establishment, if a sole proprietorship, or, if the applicant is a corporation or partnership, it shall designate one of its officers or general partners as its authorized representative. The authorized representative shall complete and sign all application forms required for an individual applicant under this chapter.

C. The application and fee required pursuant to this section shall be in addition to any other license, permit or fee required by any other chapter of this code or ordinance hereafter adopted. Only one application fee shall be charged regardless of the number of owners or operators designated in the application.

D. The application for a permit does not authorize the operation of a massage establishment unless and until such permit has been properly granted, nor does the possession of a valid massage establishment permit authorize the possessor to perform work for which a massage technician permit is required. (Ord. 1919 § 2, 2017)

17.29.050 Massage Establishment Operator ’s Permit Application Requirements
The application for a massage owner or operator’s permit shall contain or be accompanied by the following information:

A. The type of ownership of the business, i.e., whether by individual, partnership, corporation or otherwise.

1. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the names and residence addresses of each of its current officers, directors and each stockholder holding more than five percent of the stock of that corporation.

2. If the applicant is a partnership, the application shall set forth the name and residence address of each of the partners, including limited partners.

3. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporations shall apply.

Page 22 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 4/13 B. The true full and precise name under which the massage establishment is to be conducted.

C. The present or proposed address where the massage establishment is to be conducted and all telephone numbers for the massage establishment.

D. A complete current list of the names and residence addresses of all proposed massage technicians, aides, trainees and other employees who are or will be employed in the massage establishment, if known. If not known at the time of submission of the application, the applicant shall provide the required information no later than ten calendar days prior to opening for business.

E. The name and residence addresses of the proposed operator or manager who will be principally in charge of the operation of the massage establishment.

F. A description of any other business operated on the same premises as the proposed massage establishment, or within the city or the state, which is owned or operated by the owner or operator.

G. The name and address of the owner and lessor of the real property upon or in which the proposed business is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized affidavit from the owner of the property acknowledging that a massage establishment will be located on his or her property.

H. The complete business, occupation and employment history for eight years preceding the date of application, including, but not limited to, a massage establishment or similar type of business history and experience of the applicant.

I. The complete massage permit history; whether such person has ever had any similar type of permit or license issued by any agency, board, city, county, territory or state; the date of issuance of such a permit or license, whether the permit or license has been or was ever denied, revoked or suspended; if a vocational or professional license or permit has been or was ever denied, revoked or suspended; if the applicant has ever been required to surrender a permit or license as a result of pending criminal charges or in lieu of said permit or license being suspended or revoked and the reason therefor.

J. All criminal convictions, including pleas of nolo contendere, within the last 10 years including those convictions dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefor.

K. A complete set of fingerprints taken by the Police Department. The applicant shall be responsible for payment of any fingerprinting fee.

L. Two portrait photographs at least two inches by two inches in size taken within the last month.

M. Authorization for the City, its agents and employees to seek verification of the information contained in the application.

N. Such other identification and information as the Chief of Police may reasonably require in order to discover the truth of the matters herein specified and as required to be set forth in the application.

Page 23 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 5/13 O. A statement in writing and dated by the person providing the information that he or she certifies under penalty of perjury that all information contained in the application is true and correct.

P. A certificate of compliance from any affected department or agency, including, but not limited to, the City’s Development Services Department, Building Division and the San Bernardino County Health Department must be submitted prior to the application’s final approval. Any required inspection fees shall be the sole responsibility of the applicant. If the certificates of compliance are not received by the Chief of Police within 90 calendar days of the date of filing of the application, said application shall be deemed void. If any land use permit or other entitlement for the use of the property as a massage establishment is required, such permit or use entitlement shall be obtained by the applicant prior to the massage establishment permit becoming effective.

Q. Every owner and operator shall also provide the following personal information:

1. The full, true name and all aliases used;

2. Date and place of birth, valid picture identification, such as a California or other state driver ’s license, California or other state identification card, resident alien card, if applicable; and social security card or proof of authority to work in the United States;

3. The current residence address and residence telephone number and all previous residential addresses for a minimum of eight years immediately preceding the present address of the applicant and the dates of residence for each address;

4. Acceptable written proof that the owner and/or operator is at least 18 years of age;

5. Height, weight, gender and color of hair and eyes.

R. If, during the term of a permit, the permittee has any change in information submitted on the original or renewal application, the permittee shall notify the Police Department in writing of any such change within 10 business days thereafter.

S. If an owner or operator also desires to act as a massage technician or out call massage technician, he or she shall also satisfy the requirements for the respective permit set forth in this chapter. (Ord. 1919 § 2, 2017)

17.29.060 Massage Establishment Design Standards
Every massage establishment shall maintain facilities meeting all of the following requirements:

A. Signs shall be in conformance with Chapter 17.15 (Signs).

B. Minimum lighting shall be provided in accordance with the California Building Code or successor provision or provisions. In addition, at least one artificial light of not less than 60 watts shall be provided in each room or enclosure where massage services are performed on patrons. The lighting in each room or enclosure shall be activated and maintained in operation without interruption at all times while the patron is in such room or enclosure.

Page 24 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 6/13 C. Minimum ventilation shall be provided in accordance with the California Building Code or successor provision or provisions.

D. Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be readily available.

E. Hot and cold running water shall be provided at all times.

F. Closed cabinets with solid doors shall be provided for storage of clean linens.

G. Adequate, dressing, locker, and toilet facilities shall be provided to patrons. Dressing areas and lockers that are capable of being locked, may be provided in enclosed massage therapy rooms; alternatively separate male and female dressing rooms with lockers that are capable of being locked, shall be provided.

H. Restrooms shall be provided either as a single occupancy gender neutral restroom facility, or separate male and female restrooms shall be provided.

I. If bathing facilities are provided, separate male and female facilities shall be provided resulting in a minimum of two separate bathing facilities.

J. A minimum of one separate wash basin for employees shall be provided at all times. The basin shall be separate from the public restrooms and located within or as close as practicable to the area devoted to performing massage services. Sanitary towels shall also be provided at each basin.

K. Massage tables or massage chairs of a type and nature used by professionals in this industry shall be utilized and each shall have, at minimum, a two-inch thick foam pad covered with durable, washable plastic or other waterproof material. Beds, floor mattresses, and waterbeds are not permitted to be used.

L. At the beginning of a treatment session, the massage practitioner or massage therapist shall provide to all patrons clean, sanitary, and opaque coverings capable of covering the patron’s genitals. In addition, a female patron’s breasts shall be fully covered by a nontransparent covering.

M. The Chief of Police shall require that the following notice be posted in the event that any employee of the massage establishment or any person who has been aided and abetted by an employee of the massage establishment has been found, after full hearing by administrative proceeding or by a court of competent jurisdiction, to have violated any of the offenses that would be grounds for denial under Sections 17.29.100 and 17.29.110.

NOTICE TO ALL PATRONS

THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT PROVIDE

COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY UPLAND POLICE DEPARTMENT WITHOUT PRIOR NOTICE.

N. No massage establishment shall have installed or utilize any signaling devices of any type to alert employees and/or customers to the presence of law enforcement personnel.

Page 25 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 7/13 O. The receptionist station shall be a designated area for greeting customers, contiguous to the customer lobby. If partitioned from the customer lobby, it shall have a clear, unobstructed opening, or an opening of clear unobstructed glass, at least 30 inches by 30 inches which allows unobstructed visibility between the customer lobby and the interior of the receptionist station. (Ord. 1919 § 2, 2017)

17.29.070 Massage Establishment Performance Standards
No person shall engage in, operate, conduct, or carry on, or permit to be engaged in, conducted, or carried on, any massage establishment, unless each and all of the following requirements are met:

A. The premises shall be open only between the hours of 7:00 a.m. to 9:00 p.m. Massage services shall be carried out and concluded in time to comply with the 9:00 p.m. closing time. A list of services available as approved pursuant to the application and the cost of such services shall be posted in an open public place within the premises and shall be described in readily understandable language. In the event any list of services and costs posted or provided hereunder is in a language other than English, the permittee shall, at the permittee’s cost and expense, provide to the Chief of Police an English language translation thereof. Such English translation shall be attested to as being a full, true and correct translation thereof under penalty of perjury under the laws of the state of California. No owner, manager, operator, responsible managing employee, or permittee shall permit, and no massage practitioner or massage therapist certification shall offer or perform, any service other than those posted.

B. The massage establishment permits and a copy of the license and photo of each and every massage practitioner or massage therapist employed in the establishment shall be displayed in an open and conspicuous place on the premises.

C. Every massage establishment shall keep a written record of the date and hour of each treatment, the name and address of each patron, the name of the massage practitioner or massage therapist administering the treatment, and the type of treatment administered. Such written record shall be maintained on forms approved by the Chief of Police. Such records shall be open to inspection only by officials charged with enforcement of this chapter, shall be available during all business hours of the establishment, and shall be used for no other purpose. Any unauthorized disclosure or use of such information by any person, including any officer or employee of the City or the County of San Bernardino, or the owner or employee of the massage establishment, shall constitute a misdemeanor, punishable as provided in this chapter, in addition to any other penalties provided by law. Such records shall be maintained on the premises of the massage establishment for a period of two years.

D. Massage establishments shall at all times be equipped with an adequate supply of clean, sanitary towels, coverings, and linens. Clean towels, coverings, and linens shall be stored in enclosed cabinets with solid doors. Towels and linens shall not be used on more than one patron, unless such towel or linen has first been laundered and disinfected. Disposable towels and coverings shall not be used on more than one patron. Soiled linens and towels shall be deposited in separate, health department approved receptacles.

Page 26 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 8/13 E. Wet and dry heat rooms, steam or vapor rooms or cabinets, toilet rooms, shower and bath rooms, tanning booths, whirlpool baths, and pools shall be thoroughly cleaned and disinfected as needed, and at least once each day the premises are open, with a disinfectant approved by the San Bernardino County health department. Bathtubs shall be thoroughly cleaned with a disinfectant, approved by the health department, after each use. All walls, ceilings, floors, and other physical facilities of the establishment must be in good repair and maintained in a clean and sanitary condition.

F. Instruments utilized in performing massage shall not be used on more than one patron unless such instruments have been sterilized, using approved sterilizing methods.

G. All employees, including massage practitioner or massage therapist, shall be clean, and wear clean, nontransparent outer garments. Such garments shall not expose genitals, pubic area, buttocks, or chest.

H. No person shall enter, be, or remain in any part of a massage establishment while in the possession of, consuming, under the influence of, or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The owner, operator, responsible managing employee, manager, or permittee shall not permit any such person to enter or remain upon such premises.

I. No massage establishment shall operate as a school of massage or use the same facilities as that of a school of massage.

J. No massage establishment granted a permit under this article shall place, publish, or distribute or cause to be placed, published, or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers or clients that any service is available other than those services described in Part 7 (Definitions: Massage Establishment). No massage establishment or outcall massage service shall employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services as described in Part 7 (Definitions: Massage). All exterior doors shall remain unlocked from the interior side during business hours.

K. A massage shall not be given and no patron shall be in the presence of a massage practitioner or massage therapist or other employee unless the patron’s genitals are fully covered by a nontransparent covering. In addition, a female patron’s breast shall be fully covered by a nontransparent covering.

L. No massage establishment shall be open for business without at least one on-site manager and one massage practitioner or massage therapist on the premises at all times who is in possession of a current valid permit. (Ord. 1919 § 2, 2017)

17.29.080 Inspections
A. To the maximum extent permitted by law, the Police Chief, Development Services Director, Code Enforcement and the San Bernardino County Health Department, or each of the aforementioned authorized representatives, shall have the right to enter any massage establishment for the purpose of making reasonable unscheduled inspections to observe and enforce compliance with applicable regulations, laws, and provisions of this chapter.

Page 27 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 9/13 B. The Code Enforcement official and each and all of his or her assistants and any police officer shall have the power and authority to enter, free of charge, and at any reasonable time, any place of business required to be licensed herein, and demand an exhibition of its license certificate. Any person having such license certificate theretofore issued, in his or her possession or under his or her control that fails to exhibit the same on demand, shall be guilty of a misdemeanor and subject to the penalties provided for by the Upland Municipal Code. (Ord. 1919 § 2, 2017)

17.29.090 California Massage Therapy Council Certification All massage practitioners and massage therapists shall be required to obtain certification from the California Massage Therapy Council in order to practice massage therapy in the City of Upland. In addition to the other requirements of this chapter, a certificate holder shall:

A. Display his or her original certificate wherever he or she provides massage for compensation. A certificate holder shall have his or her identification card in his or her possession while providing massage services for compensation.

B. Provide his or her full name and certificate number upon the request of a member of the public, member of law enforcement, or local government agency charged with regulating massage or massage establishments, at the location where he or she is providing massage services for compensation.

C. Include the name under which he or she is certified and his or her certificate number in any and all advertising of massage for compensation.

D. Notify the City within 30 days of any changes in the certificate holder’s address where he or she provides massage for compensation. (Ord. 1919 § 2, 2017)

17.29.100 Denial, Suspension or Revocation of Operator ’s Permit It is a violation of this chapter for an applicant or a holder of a business license, operator ’s permit or certificate to practice massage to commit any of the following acts, the commission of which is grounds for the City to deny, suspend or revoke a permit:

A. Unprofessional conduct, including, but not limited to, any of the following:

1. Advertising illegal sexual acts and/or services not authorized under this code.

2. Engaging in any form of sexual activity on the premises of a massage establishment where massage is provided for compensation, excluding a residence.

3. Engaging in sexual activity while providing massage services for compensation.

4. Practicing massage on a suspended certificate or practicing outside of the conditions of a restricted certificate.

5. Providing massage of the genitals or anal region.

Page 28 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 10/13

6. Providing massage of female breasts without the written consent of the person receiving the massage and a referral from a licensed California health care provider.

B. Procuring or attempting to procure a certificate by fraud, misrepresentation, or mistake.

C. Failing to fully disclose all information requested on the application.

D. Impersonating an applicant or acting as a proxy for an applicant for the issuance of a permit or business license.

E. Impersonating a certificate holder, or permitting or allowing a noncertified person to use a certificate.

F. Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision of this chapter or any rule or bylaw adopted by the state.

G. Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of a certificate holder.

H. Denial of licensure, revocation, suspension, restriction, citation, or any other disciplinary action against an applicant or certificate holder by another state or territory of the United States, by any other government agency, or by another California health care professional licensing board. A certified copy of the decision, order, judgment, or citation shall be conclusive evidence of these actions.

I. Being convicted of any felony, misdemeanor, infraction, or municipal code violation, or being held liable in an administrative or civil action for an act, that is substantially related to the qualifications, functions, or duties of a certificate holder. A record of the conviction or other judgment or liability shall be conclusive evidence of the crime or liability.

J. Dressing while engaged in the practice of massage for compensation, or while visible to clients in a massage establishment, in any of the following:

1. Attire that is transparent, see-through, or substantially exposes the certificate holder ’s undergarments.

2. Swim attire, if not providing a water-based massage modality approved by the council.

3. A manner that exposes the certificate holder ’s breasts, buttocks, or genitals.

4. A manner that constitutes a violation of Section 314 of the Penal Code.

5. A manner that is otherwise deemed by the City to constitute unprofessional attire based on the custom and practice of the profession in California.

K. Committing any act punishable as a sexually related crime or being required to register pursuant to the Sex Offender Registration Act (Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1 of the Penal Code), or being required to register as a sex offender in another state.

Page 29 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 11/13 L. Holding himself or herself out or to use the title of “certified massage therapist” or “certified massage practitioner,” or any other term, such as “licensed,” “certified,” “CMT,” or “CMP,” in any manner whatsoever that implies or suggests that the person is certified as a massage therapist or massage practitioner, unless that person currently holds an active and valid certificate issued by the state.

M. Falsely stating or advertising or putting out any sign or card or other device, or falsely representing to the public through any print or electronic media, that he or she or any other individual is licensed, certified, or registered by a governmental agency as a massage therapist or massage practitioner. (Ord. 1919 § 2, 2017)

17.29.110 Notice for Denial, Suspension or Revocations
When the Police Chief concludes that grounds for denial, suspension, revocation or refusal to renew a permit exist, the Police Chief shall serve the applicant or permit holder, either personally or by deposit in the U.S. mail (postage prepaid, first class), addressed to the applicant’s current address or addresses on file with the Police Department, with a notice of denial, non-renewal or notice of intent to suspend or revoke a permit (the “notice”). This notice shall state the reasons for the proposed action, the effective date of the decision, the right of the applicant or permit holder to appeal the decision to the City Manager and that the Police Chief’s decision will be final if no appeal is filed within the time stated. If the above notice is mailed and the address(es) on file is found to be invalid and mail cannot be delivered, the time for filing an appeal shall end upon notice to the City of such invalidity or inability to deliver. The permit may then be revoked immediately, due to the address not being current as required by this chapter. (Ord. 1919 § 2, 2017)

17.29.120 Appeals
A. The right to appeal to the City Manager shall terminate upon the expiration of 15 calendar days from the date of deposit in the U.S. mail (postage prepaid, first class), or from personal service of the above notice. The appeal shall be personally delivered to or sent by U.S. mail (postage paid, first class), to the Chief of Police.

B. In the event an appeal is timely filed, the suspension or revocation shall not become effective until a final decision has been rendered by the City Manager. If no appeal is filed, the suspension or revocation shall become effective upon the expiration of the period for filing appeals.

C. The City Manager shall set a date, time and place for a hearing on appeal and shall notify the appellant of such date, time and place of the hearing. Said notice shall be sent by certified mail with proof of service attached, to the appellant, applicant or permittee at least 10 calendar days prior to the date of the hearing, addressed to the address listed on the respective application or, the address given in the notice of appeal. The appellant, applicant or permittee shall be entitled to notice of the basis for the proposed action, a copy of the documents upon which the notice was based and will have the opportunity to present contrary evidence at the hearing.

D. The City Manager, in his or her sole discretion, may grant or deny a request for a continuance.

Page 30 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 12/13 E. The City Manager shall preside over the hearing on appeal or, in the alternative, the City Manager may appoint a hearing officer to conduct the hearing and receive relevant evidence. The City Manager or designee shall render a written decision within 45 calendar days from the date of the hearing. The decision of the City Manager or designee shall be final.

F. The following rules of evidence shall apply at the hearing:

1. Oral evidence shall be taken only under oath or affirmation. The City Manager or designee shall have authority to administer oaths, and to receive and rule on admissibility of evidence.

2. Each party shall have the right to call and examine witnesses, to introduce exhibits, and to cross-examine opposing witnesses who have testified under direct examination. The City Manager or designee may also call and examine any witness.

3. Technical rules relating to evidence and witnesses shall not apply to hearings provided for in this chapter. Any relevant evidence may be admitted if it is material and is evidence customarily relied upon by responsible persons in the conduct of their affairs regardless of the existence of any common law or statutory rule which might make admission of such evidence improper over objection in civil actions. Hearsay testimony may be admissible and used for the purpose of supplementing or explaining any evidence given in direct examination, but shall not be sufficient in itself to support a finding unless such testimony would be admissible over objection in civil actions.

The rules of privilege shall be applicable to the extent they are now, or are hereafter permitted in civil actions. Irrelevant, collateral, undue, and repetitious testimony shall be excluded. (Ord. 1919 § 2, 2017)

17.29.130 Procedure for Compliance for Existing Establishments A. Massage establishments in existence at the time of the adoption of the ordinance codified in this chapter shall comply with the provisions of this chapter in accordance with the following:

1. Within 30 days of the effective date of the ordinance codified in this chapter, the City shall notify the owners and operators of each massage establishment in the City of the ordinance’s adoption. The City shall send a copy of the ordinance and a schedule for compliance via certified return receipt mail. If a notice is returned, the City shall send the notice via standard U.S. mail.

2. Within 30 days of the mailing of the notice in subsection (A)(1), the massage establishment operator shall submit an application for an operator ’s permit to the City in accordance with the provisions set forth in Section 17.29.040.

B. An existing massage establishment operator may make a written request for an extension of time to comply with the deadlines herein, upon a demonstrated showing of hardship. The Development Services Director or designee will hear the matter, and grant, deny or modify the request for an extension based on whether the facts demonstrate a reasonable and legitimate hardship for the operator. The decision of the Development Services Director or designee shall be final and not subject to appeal to the Planning Commission or City Council. (Ord. 1919 § 2, 2017)

Page 31 of 32 ends

8/25/22, 5:27 PM Chapter 17.29 MASSAGE THERAPY
https://library.qcode.us/lib/upland_ca/pub/municipal_code/item/title_17-part_4-chapter_17_29?view=all 13/13

17.29.140 Transfer or Assignment
No operator’s permit may be sold, transferred or assigned by a permittee, or by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be null and void except as hereinafter set forth. (Ord. 1919 § 2, 2017) Contact:

City Clerk: 909-931-4120
Published by Quality Code Publishing, Seattle, WA. By using this site, you agree to the terms of use.

Page 32 of 32 ends

S T A F F R E P O R T
I T E M N O . 13.A .

D A T E :S ep tem b er 1 2, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : M A R C E LO B L A N C O, P O L I C E C H I E F

B R Y C E M I L A K O V I C H , P O L I C E S E R G E A N T S U B J E C T :U N L A W F U L C A M P I N G A N D S TO R A G E O F P E R S O N A L P R O P E RT Y

R E C O M M E N D E D A C T I O N
I t i s recom m en d ed t hat th e C ity C ou ncil h old first read in g b y title on ly, w aive furth er read in g , and i nt rod uc e an O rd in anc e rep ealing U p l an d M u nicip al C od e 1 2.4 0 and ad d in g C h ap t er 1 2.4 6 to create and i m p lem ent an effec ti ve p roced ure t o reg u lat e c am p in g an d s torag e of p erson al p rop erty to p rotect p ub lic h ealth an d safety.

G O A L S T A T E M E N T
Th e p rop osed action s up p orts th e M ission of th e U p lan d Poli ce D ep artm en t of m aintain in g ord er an d the D ep artm en t’s g oal of in creasing th e q u ality of life in the city.

B A C K G R O U N D
O ver th e p ast s everal years, the Up lan d Police D ep artm ent h as com e ac ros s n um erou s in d ivid uals cam p i n g an d st ori n g p erson al p rop ert y in p u b l ic areas creating im m ed iate hazard s and n uisan ces to the p u b lic an d to th e ind ivid u als them selves. For exam p le, officers have foun d en cam p m ent s in p u b l ic p laces t hat h ave b locked ri g h t of w ays, p u b lic ent ran ces , an d have b een hazard s at ou r l ocal p u b lic p arks . Th ere h ave b een p rob lem s th rou g h ou t th e C ity w ith in d i vid u al s storin g p erson al p rop ert y su ch as su it cases, b ac kp ac ks, t ent s, an d oth er item s b locking p u b lic rig h t-of-way an d /or creating im m ed iate hazard s to p u b lic safety. Th is new p rop osed m u n i ci p al cod e is n ot in ten d ed to i n t erfere w it h ot herw is e lawfu l an d ord inary uses of p u b li c or p rivat e p rop erty, or to c ri m i n al ize or reg u lat e hom elessn ess or crim inalize any un avoid ab le con seq uen ces of b ein g hom eless. Rat her, this c od e is to m aintain st reet s, p arks, and ot her p u b li c an d p rivat e areas with in t h e C i ty in a c lean , san itary, and ac ces si b l e con d ition and to ad eq u ately p rotect the h ealth, safety, an d welfare of the p ub lic.

Page 1 of 12 ends

I S S U E S /A N A L Y S I S
Th is p rop osed ord in an c e w ou l d m ake it un lawfu l for an y p erson to cam p , estab lish, m ain tain, allow, op erate, or occu p y C am p Faci li ti es; or u s e C am p Parap h ern ali a, in an y p u b li c or p rivate street or rig h t -of-w ay, i nclu d i ng si d ew al ks, b u s s top s, p u b lic lan d s cap in g , any p arki n g lot, yard , b u i ld in g setb ack, vacant l an d , op en sp ace, p ark, or an y ot h er area op en to, accessib le to, or con trolled b y th e p ub lic, im p roved or u n im p roved , in , on , u n d er, or ad jac en t t o any stru cture n ot i nt end ed for h u m an oc cu p an cy, in, on , u n d er, or ad jacen t t o a p arked vehicle on any P u b l ic or P ri vate P rop ert y, in cl u d in g , b u t n ot li m i ted to, an aut om ob ile, b u s, tru ck, cam p er, trailer, or recreational vehi cl e, or w ithin 1 0 feet of an y oth er C am p Facilit y or C am p Parap hernalia. T his sect ion w ill n ot ap p l y to p ers on al cam p i n g on resi d en ti al P ri vate P rop erty w ith con sen t of the p erson in p ossession or c ont rol of t h e P ri vate P rop ert y, an d wh ere such u se d oes n ot violate any p rovision of t his C od e or S t ate l aw, d oes n ot c reat e or p erm it a p ub lic nu isance, and w h ere such u se i s not w it hi n vi ew of t he p u b li c rig h t-of-way. T his c od e w ould not ap p ly to cam p ing w here sp ecifically p erm itted with in C ity-ap p roved cam p g roun d s or facilities and cam p ing i n conn ect ion w i th sp ecial even t s as authorized b y the ci ty throug h issu ance of p erm it p ursu ant to this C od e.

O fficers m ay n ot arrest or p rovid e a citation to an in d ivid ual for a violation of un lawfu l cam p in g un less th ey h ave offered the in d i vid ual an op en shelter b ed th at is im m ed iat ely avail ab l e to th at p erson . Th e enforcem ent offi ci al m ust also d et erm in e th e t ran sp ort ati on avai lab il it y to th at p ers on , th e d istan ce of th e h om el ess s hel ter an d th e loc ati on of t he p erson , the lim itation s on th e am ou n t of con sec ut ive n i g h ts a p ers on can stay at t h e shelter, or an y oth er circum stance of t h e p erson , or an y p oli cy or req ui rem ent of th e h om eless shelter, kn ow n b y th e en forcem en t offi cers, th at w ou ld m ake the s h el ter p racti cal ly un availab le to th e p erson, even if t he shelter wou ld b e p ractically avail ab l e to som eon e el se. H owever, exi st in g law allow s enforcem ent officials t o im m ed iat ely rem ove c am p s t h at p os e an i m m ed i ate h azard t o p ub lic safety.

Th is c od e al so m akes it un lawfu l an d a p u b l ic nu isance for any p erson to store p erson al p rop erty in an y of th e fol low i n g areas, excep t as ot herw ise ap p roved b y th e C it y M an ag er’s D esig n ee or as p erm itted b y th is C od e or S t ate law. Pers on al p rop erty cann ot b e s tored on any p u b lic or p rivate street or rig h t-of-way, inclu d ing sid ewalks, b us stop s, and p u b lic lan d scap in g .

Personal p rop erty c ann ot b e stored in an y p arkin g l ot, yard , b u ild ing set b ac k, vacan t lan d , op en sp ace, p ark, or any other area op en to, accessib le to, or controlled b y the p ub lic, im p roved or u n i m p roved . Pers on al p rop erty stored in violation of t h i s c od e is sub ject to im p ou nd m en t or d isp osal p u rsuan t to th e p roced ures of this cod e.

I n an y cas e w h ere Pers on al p rop ert y i s n ot i n t en t ion all y ab and oned or cont rab and or evid en ce in a crim inal cas e, the en forc em en t official sh all leave a written 24 -hou r notice in a con sp icuou s p lace at or n ear w h ere th e Person al P rop erty is foun d . Th e notice wi ll d is p l ay th at p erson al p rop erty stored in violation of this chap ter is su b ject to rem oval after 2 4 h ours.

F I S C A L I M P A C T S
I t is p rop osed t he n ew ord i n an ce w ill have a p osit ive fiscal im p ac t as C od e E n forcem en t, P u b lic Works, an d Police O fficers will sp en d less tim e ad d ressing p rop erty that is stored in p u b lic rig h t -of-w ays an d en cam p m en t s t h at are an im m ed iat e hazard to t he p ub lic. I t is also b elieved th is cod e could save th e C ity m on ey from claim s of in d i vid u al s w ho are in ju red b y p rop erty, encam p m en ts b loc kin g p ub lic ri g h t-of-ways or accid ents in cu rred b y en cam p m ents, and p rop erty creatin g im m ed iate h azard s.

A L T E R N A T I V E S
P rovid e altern ative d irection to staff.

Page 2 of 12 ends

AT TAC HM E NT S :

Description
Unlawful Camping and Storage of Personal P roperty Ordinance

Page 3 of 12 ends

ORDINANCE NO. ___

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

UPLAND, REPEALING UPLAND MUNICIPAL CODE CHAPTER

12.40 AND ADDING CHAPTER 12.46 TO CREATE AND

IMPLEMENT AN EFFECTIVE PROCEDURE TO REGULATE

CAMPING AND STORAGE OF PERSONAL PROPERTY TO

PROTECT PUBLIC HEALTH AND SAFETY

THE CITY COUNCIL OF THE CITY OF UPLAND DOES HEREBY ORDAIN AS FOLLOWS:

Section 1. Findings.

A. California Constitution, article XI, section 7, authorizes the City of Upland (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with the general laws.

B. The City has seen a proliferation of public nuisances related to unlawful camping and storage of personal property activities, including, but not limited to, increased visual blight and interference with pedestrian and vehicular traffic.

C. It is the City’s duty to keep its public rights of way clean and available for public use, and to protect the public health, safety, and access by City constituents.

D. The City wishes to accomplish the aforementioned objectives in a manner that preserves the dignity and safety of all residents and exhausts alternative models to promote compliance.

E. The City now desires to add Upland Municipal Code (“UMC”) chapter

12.46 to create and implement an effective procedure to regulate camping and storage of personal property activities and abate related nuisances, and thereby, help protect the health and safety of City residents.

Section 2. UMC chapter 12.40 (Unlawful Camping and Storage of Personal Property) is hereby repealed in its entirety.

Section 3. UMC chapter 12.46 (Camping and Storage of Personal Property) is hereby added, and is to read in its entirety as follows:

Page 4 of 12 ends

Ordinance No. ___

Page 2 ends

Chapter 12.46

CAMPING AND STORAGE OF PERSONAL PROPERTY
Sections:

12.46.010 Purpose

12.46.020 Definitions

12.46.030 Unlawful Camping

12.46.040 Storage Of Personal Property

12.46.050 Receiving Personal Property

12.46.060 Notice

12.46.070 Failure To Remove Personal Property

12.46.080 Holding Of Personal Property; Repossession By Owner

12.46.090 Evidence In A Criminal Case

12.46.100 Disposition After Holding Period

12.46.110 Enforcement

12.46.010 Purpose
The purpose of this Chapter is to maintain streets, parks, and other public and private areas within the City in a clean, sanitary, and accessible condition and to adequately protect the health, safety, and welfare of the public. Nothing in this Chapter is intended to interfere with otherwise lawful and ordinary uses of public or private property, or to criminalize or regulate homelessness or criminalize any unavoidable consequences of being homeless.

12.46.020 Definitions
For purposes of this Chapter, the following definitions shall apply, unless the context clearly indicates otherwise:

A. “Abandoned Personal Property” means Personal Property that the owner abandons, surrenders, relinquishes, or disclaims. Indicia of Abandoned Personal Property include, but are not limited to, Personal Property found where nobody in the immediate vicinity claims ownership; and Personal Property left on private real property for any period of time without the permission of a person in possession or control of the real property.

B. “Camp” means to place, pitch, or occupy Camp Facilities; to live temporarily in a Camp Facility or outdoors; or to use Camp Paraphernalia for the purpose of temporary or permanent human habitation.

C. “Camp Facilities” mean and include, but are not limited to, tents, huts, vehicles, vehicle camping outfits, or temporary shelter.

Page 5 of 12 ends

Ordinance No. ___

Page 3 ends

D. “Camp Paraphernalia” means and includes, but is not limited to, bedrolls, tarpaulins, cots, beds, sleeping bags, hammocks, or cooking facilities and similar equipment.

E. “Chief of Police’s Designee” means and includes the Chief of Police or the person designated by the Chief of Police to fulfill the responsibilities required by this Chapter.

F. “City Manager’s Designee” means and includes the City Manager or the person designated by the City Manager to fulfill the responsibilities required by this Chapter.

G. “Enforcement Official” means and includes any City employee or agent of the City authorized by this Code, the City Council, the City Manager, or the Chief of Police to enforce any provision of this Code.

H. “Establish” means setting up or moving equipment, supplies, or materials onto Public or Private Property to Camp or Operate Camp Facilities.

I. “Maintain” means keeping or permitting equipment, supplies, or materials to remain on Public or Private Property.

J. “Operate” means participating or assisting in establishing or maintaining a Camp or Camp Facility.

K. “Person” means any natural person, business, organization, corporation, or other legal entity.

L. “Personal Property” means any and all tangible items including, but not limited to, goods, materials, merchandize, Camp Paraphernalia, luggage, backpack, books, clothing, documents, household goods, and medication.

M. “Private Property” means all privately owned real property.

N. “Public Property” means all public agency owned, possessed, controlled, or operated real property including, but not limited to, streets, sidewalks, alleys, improved or unimproved land, and parks.

O. “Store” means to put aside or accumulate for use when needed, to put for safekeeping, or to place or leave in a location.

Page 6 of 12 ends

Ordinance No. ___

Page 4 ends

12.46.030 Unlawful Camping
A. It is unlawful and a public nuisance for any person to: Camp; establish, maintain, allow, operate, or occupy Camp Facilities; or use Camp Paraphernalia, in the following areas—

1. Any public or private street or right-of-way, including sidewalks, bus stops, and public landscaping.

2. Any parking lot, yard, building setback, vacant land, open space, park, or any other area open to, accessible to, or controlled by the public, improved or unimproved.

3. In, on, under, or adjacent to any structure not intended for human occupancy.

4. In, on, under, or adjacent to a parked vehicle on any Public or Private Property, including, but not limited to, an automobile, bus, truck, camper, trailer, or recreational vehicle.

5. Within 10 feet of any other Camp Facility or Camp
Paraphernalia.

B. The prohibition on Camping in this Section shall not apply to the following:

1. Camping on residential Private Property with consent of the person in possession or control of the Private Property, and where such use does not violate any provision of this Code or State law, does not create or permit a public nuisance, and where such use is not within view of the public right-of-way.

2. Camping where specifically permitted within City-approved campgrounds or facilities.

3. Camping in connection with a special event as authorized by the City through issuance of a permit pursuant to this Code.

C. The exceptions contained in Subsection (B) of this Section do not apply where Camping is conducted in such a manner as to: create inadequate sanitation or other public nuisance; violate any law; constitute a use of land prohibited by zoning regulations due to the frequency, intensity, or duration of the Camping; be prohibited under any other provision of this Code concerning the use of mobilehomes; be contrary to any fee, charge, or other monetary consideration that is collected for the privilege of Camping or for any services or the use of any facilities related thereto, other than at City-approved campgrounds or facilities.

Page 7 of 12 ends

Ordinance No. ___

Page 5 ends

D. Nothing in this Chapter is intended to prohibit or make unlawful activities of a property owner or lawful tenant of Private Property that are incidental to the lawful and authorized use of Private Property for residential or other approved and legal purposes. Nothing herein is intended to prohibit or make unlawful activities of a property owner or other lawful tenant if such activities are expressly authorized by the City's zoning ordinances, other ordinances, or regulations.

12.46.040 Storage Of Personal Property
A. It is unlawful and a public nuisance for any person to store Personal Property in any of the following areas, except as otherwise approved by the City Manager’s Designee or as permitted by this Code or State law:

1. Any public or private street or right-of-way, including sidewalks, bus stops, and public landscaping.

2. Any parking lot, yard, building setback, vacant land, open space, park, or any other area open to, accessible to, or controlled by the public, improved or unimproved.

B. Personal Property stored in violation of this Section shall be subject to impoundment and/or disposal pursuant to the procedures in this Chapter.

12.46.050 Receiving Personal Property
The Chief of Police’s Designee shall make provisions for safekeeping Personal Property received by the City. In the event the Personal Property is delivered to the City by a person other than a City employee or agent, a receipt shall be issued to that person, unless the property was found in the course of employment by an employee of the City.

12.46.060 Notice
A. No Notice for Intentionally Abandoned, Dangerous, or Perishable Property, Contraband, or Waste. Unlawfully stored Personal Property that is believed in good faith to be intentionally Abandoned or which presents an immediate threat to public health or safety, is perishable, is contraband, or which clearly constitutes waste or trash as defined by this Code may be disposed of without any notice.

B. No Notice for Contraband or Evidence in Criminal Case.

Unlawfully stored Personal Property that constitutes contraband or evidence in a criminal investigation may be impounded without notice.

C. Pre-Removal Notice. Where Personal Property not subject to Subsections (A) or (B) of this Section is found by an Enforcement Official, the Enforcement Official shall leave a written 24-hour notice in a conspicuous place

Page 8 of 12 ends

Ordinance No. ___

Page 6 ends

at or near where the Personal Property is found. Such notice shall state that the storage of Personal Property is in violation of this Chapter and may be subject to impoundment and disposal if not removed within the 24-hour period.

D. Notice Upon Impoundment. If Personal Property has not been removed after 24 hours of providing any required notice under Subsection (C) of this Section, the City may impound the Personal Property. The City shall provide a written notice, in a conspicuous place at or near where the Personal Property was located, advising where the Personal Property is being kept and when and where it may be claimed by the owner.

E. Notice Signs. The City may erect signs in commonly affected areas to provide the notices required under this Section.

12.46.070 Failure To Remove Personal Property
It is unlawful and a public nuisance to fail to remove Personal Property within 24 hours of receiving written notice requiring removal. Moving Personal Property to another location where storage is prohibited by this Chapter shall not constitute compliance with removal.

12.46.080 Holding Of Personal Property; Repossession By Owner A. Personal Property coming into possession of the Chief of Police’s Designee pursuant to this Chapter shall be deposited in a safe place for a period of at least 90 days. In the event such Personal Property is not claimed within the 90 days, it shall be deemed Abandoned Personal Property, subject to disposition as provided in this Chapter or as otherwise permitted by law.

B. The owner of the Personal Property may repossess the Personal Property upon submitting satisfactory proof of ownership during the 90-day holding period. A person may establish ownership by, among other methods, describing the location where the Personal Property was found and providing a specific and detailed description of the Personal Property. If ownership cannot be determined to the satisfaction of the Chief of Police’s Designee, the Chief of Police’s Designee may refuse to return the Personal Property. If the Chief of Police’s Designee refuses to return Personal Property, the City shall continue to hold the Personal Property for the remainder of the 90-day period.

During that time, if the Chief of Police’s Designee is given notice that a legal action has been instituted to reclaim the Personal Property, then the Personal Property shall continue to be held until that legal action is resolved.

C. If ownership is determined, the owner shall be required to pay the reasonable costs incurred by the City for impoundment and storage prior to the return of the Personal Property, unless a financial hardship waiver is submitted to the City by the owner on forms authorized by the City and such waiver is approved by the Chief of Police’s Designee.

Page 9 of 12 ends

Ordinance No. ___

Page 7 ends

12.46.090 Evidence In A Criminal Case
Notwithstanding Section 12.46.080 of this Chapter, where Personal Property is impounded for use as evidence in a criminal case, such Personal Property shall be held until the final disposition of any pending charges, including appeals, or the lapse of time for filing an appeal, unless a court orders otherwise, in accordance with California Penal Code section 1417 et sequentes.

12.46.100 Disposition After Holding Period
Upon the expiration of any holding period for received Personal Property required pursuant to this Chapter, any remaining Personal Property not claimed by or returned to the owner may be appropriated to the City upon order of the City Manager’s Designee that the Personal Property is needed for a public use. Any Personal Property not appropriated to the City may be sold at a public auction or disposed of in such a manner as deemed appropriate by the City Manager’s Designee. If Personal Property constitutes money, such money shall be deposited into the City's general fund to offset the cost of administering this Section.

12.46.110 Enforcement
A. Any violation of this Chapter is hereby declared to be unlawful and a public nuisance.

B. Any person who engages in a violation of this Chapter shall be subject to the penalties and remedies provided by this Section.

C. Each person shall be deemed guilty of a separate offense for each and every day, or portion thereof, during which any violation of, or failure to comply with, any of the provisions of this Chapter is committed, continued, or permitted by such person, and each instance shall be deemed punishable.

D. The provisions of this Chapter shall not be construed as permitting conduct not proscribed herein and shall not affect the enforceability of any other applicable provisions of law.

E. The City may enforce any violation of this Chapter by any and all means available by law including, but not limited to, a restraining order, preliminary or permanent injunction, or criminal or administrative enforcement.

F. These penalties and remedies are cumulative and in addition to any other penalties and remedies available to the City including, but not limited to, those provided in Chapter 1.20 of this Code.

G. Except as provided in Subsection (H) of this Section, no citation for a violation of Section 12.46.030 of this Code, whether criminal or administrative, shall be issued to any person unless, at the time in question,

Page 10 of 12 ends

Ordinance No. ___

Page 8 ends

the Enforcement Official, in his or her reasonable discretion, is able to make an affirmative determination that there is a sleeping space practically available to such person in a shelter, based on the information known to the Enforcement Official at the time. In determining whether a sleeping space in a shelter is practically available to a person, the Enforcement Official shall consider the specific circumstances of the person and the specific policies and requirements of the shelter, including the following:

1. The means of transportation available to such person.

2. The distance between the homeless shelter and the location of the person.

3. The opening, closing, and check-in times of the homeless shelter.

4. Limitations on the amount of consecutive nights a person can stay at the shelter, or other similar requirements.

5. Any other circumstance of the person, or any policy or requirement of the homeless shelter, known by the Enforcement Official, that would make the shelter practically unavailable to the person, even if the shelter would be practically available to someone else.

6. A shelter shall not be considered to be practically available under this Subsection if it requires a person to participate in religious activities as a condition of receiving a sleeping space.

7. A shelter shall not be considered unavailable under this Subsection if the person is precluded from accessing the shelter solely based on their refusal to comply with the reasonable requirements of the shelter or the person is excluded from the shelter due to past violations of the shelter’s requirements.

H. Notwithstanding Subsection (G) of this Section, no person may obstruct any public or private right-of-way either with their person, or with their Personal Property, in a way that creates a risk to the health and safety of passersby, or significantly impedes pedestrian traffic, or interferes with the use and enjoyment of public parks or facilities. Upon notice by an Enforcement Official, any such person shall immediately remove the obstruction. Failure to remove the obstruction shall be unlawful and shall constitute a public nuisance.

Any Personal Property that is creating an obstruction as described in this Subsection and is not removed following notice may be impounded as provided in this Chapter.

Section 4. Compliance with California Environmental Quality Act. The Upland City Council (“City Council”) finds that this Ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to California Code of Regulations, title

Page 11 of 12 ends

Ordinance No. ___

Page 9 ends

14, chapter 3 (“CEQA Guidelines”), sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. Further, if the activity is deemed a project, the City Council finds that this Ordinance is exempt pursuant to CEQA Guidelines section 15061(b)(3).

Section 5. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The City Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof.

Section 6. Effective Date. This Ordinance shall become effective 30 days from its adoption.

Section 7. Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published in a newspaper of general circulation printed and published within the City, pursuant to all legal requirements.

PASSED, APPROVED, and ADOPTED this __th day of __________, 2022.

______________________________
Bill Velto, Mayor

I, Keri Johnson, City Clerk of the City of Upland, California, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Upland held on the __th day of __________, 2022, and was adopted at a regular meeting of the City Council of the City of Upland on the __th day of __________, 2022, by the following roll call vote:

AYES:

NOES:

ABSENT:

ABSTAINED:

ATTEST: ______________________________
Keri Johnson, City Clerk

Page 12 of 12 ends

S T A F F R E P O R T
I T E M N O . 13.B .

D A T E :S ep tem b er 12 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : S T E P H E N PA R K E R , C PA , A S S I S TA N T C I T Y M A N A G E R S U B J E C T :C O N S I D E R A T I O N O F R E S O L U T I O N S E S TA B L I S H I N G M E A S U R E L

S P E N D I N G P R I O R I T I E S A N D C I T I Z E N S ' O V E R S I G H T C O M M I TT E E

R E C O M M E N D E D A C T I O N
I t is recom m end ed that C ity C oun cil ad op t resolu tions:

1. E xp ressin g C ou n c il 's in ten t t o p riorit ize sp en d in g of t ran sac ti on an d u se (sales) tax reven ue (T U T ) for p ub lic safety an d infrastru cture p u rp oses, and

2. E stab lishing t h e M easu re L C it izen s ' O versi g h t C om m it tee an d ad op tin g op eration al g u id elines for said com m ittee.

G O A L S T A T E M E N T
Th e p rop osed action sup p orts th e C ity’s g oal of transp arency and fiscal resp on sib ility.

B A C K G R O U N D
For over th ree d ecad es th e C it y of U p land h as taken m an y ac ti on s aim ed at m ai n t ain in g the G eneral F u nd and t he services for resid ents th at it p rovid es. W h ile U p l and resid ents enjoy the local q u ality of life our com m un ity p rovid es, the C ity’s b ed room com m u nity statu s keep s it at a fin an c ial d efic it com p ared with oth er nei g h b orin g cities w ho h ave m ore rob ust com m ercial d evelop m ent.

Th e fin an c ial i m p act s to t h e C i ty have c h an g ed over the years, b u t one c om m on th read exists – contin ued action s of the S tat e th at h ave red uced an d lim ited C ity reven ues. Th e Up lan d 20 01 F in anc ial Workout P lan id entified th e S tat e’s reallocat ion of p rop ert y t ax reven ue to the E d u cation al Relief A ug m en tat ion F u nd as c ost in g U p l an d $1 6 m il li on i n t h e 1 9 9 0 ’s . T he Up lan d 2 01 3 F iscal C on d ition Rep ort was written on th e h eels of t he S tate t akin g aw ay the C ity’s Red evelop m en t A g ency an d , th ereb y m illions of d ollars in an nu al red evelop m en t fun d ing . Th e C ity c ont in ues to d eal w i th a long list of un fun d ed m an d at es from t h e S tate,

Page 1 of 9 ends

m ost notab ly recen t req uirem ents for ad d ition al tracking an d rep ortin g in the Police D ep artm ent.

B eg in ning i n t h e 1 99 0’s , p rior C ity C oun cils have p roact ivel y “kep t th eir fin ancial hou se in ord er” b y red u ci ng sp end in g to l evels con si st ent w ith reven u e p rojections. M an y C it y services have b een out sou rced , m ajor cu ts have b een m ad e, and em p loyee con ces si on s have b een rep eated ly req u es ted . W hile th at m eth od ol og y h as allowed t h e C it y to m ai n t ain it s curren t fin ances, i t h as n ot all ow ed U p lan d to m ake su fficien t i n ves tm en t s in t he areas ou r resid ents have exp ress ed a st ron g d esire: M ai nt ain in g local s treets and al leys and rep ai ri ng p otholes, p rovid in g q uick resp onses to 9-1 -1 em erg encies, and ad d ressing hom elessn ess.

Recog nizing th e need to s eek p u b l ic inp ut and g u id ance on h ow to b est ad d res s th ese ch alleng es g oin g forw ard , a C ity M an ag er’s A d vi sory Pan el (A d visory Panel) con si st in g of local com m u nity lead ers wi th d eep ti es to t he C i ty of U p l an d ’s local b usin ess an d ci vic com m u nity w as conven ed . T he A d visory Panel w as p rovid ed w ith the following d ocum ents:

F inan cial D ocum ents, inclu d ing b u d g et, an nu al c om p reh en s ive fi n an ci al rep ort, reserve p olicy, and p en sion fu nd in g p olicy.

C u rrent Reven u e M aterial s, in clud in g p rop ert y t ax d ollar b reakd ow n , tax sh are d istrib u tion, revenu e history, sales tax tren d s, and a reg ion al sales tax rate m ap .

E xp en ses D iscu ssion M aterials in clud in g a 2 02 2 U p land Police O fficer A ssociation S tud y.

Referen ce M at eri als i n c lu d i n g a p oli ce d ep artm ent m on t h l y rep ort, C it y in frastructu re and p u b l ic w orks staffing referen c es, p u b lic facilities ad d ed to C ity i n frast ru ct u re from 20 13 -20 21 , and a 20 19 G ran d J ury com p lain t.

P reviou s E valu ati on s in clud in g a su m m ary of p ast ac ti on s , C ity st aff p osit ion s ab olish ed or d ow n g rad ed , a 2 00 1 F i nan ci al Workout P lan , a 2 01 3 F i sc al Tas k Force F iscal C on d ition Rep ort, an d ad d it ion al rep orts an d recom m en d at ion s along wi th th e 2 01 3 F iscal I m p act Task Forc e M em o to C ou nc il on 1 /10 /14 , an d t h e 20 16 F in anc ial S ustainab ilit y P lan S taff Rep ort.

A d visory Pan el m em b ers w ere all volu n t eers , b ot h res id en t s an d loc al b usin ess ow ners, servin g with out com p en sat ion . I n Feb ru ary 2 02 2, t h e C ity M anag er ap p oi nt ed ei g h t (8) m em b ers to t he A d visory Pan el, an d req u ested it s m em b ers rep ort t o th e C ity C ou n c il at the con clusion of th eir service. E ach A d visory Pan el m em b er was as ked to review th e d ocum ents p rovid ed an d b ring a un iq ue an d fresh p ersp ective to th e fiscal ch alleng es faced b y th e C ity.

C u rrent c h al len g es to t h e C it y b u d g et inclu d e recen t increased servic e cos ts d u e to im p acts of C O V I D an d inflationary p ressures. T hose ch alleng es com b in e w ith em p loyee staffin g an d com p en sation is su es, cau si ng h ig her turnover of em p l oyees and the l ost b enefi t of the in stitution al kn ow led g e an d training d ollars that w ere invested in th em .

O n J un e 13 , 20 22 , C ity C oun cil ad op ted the F iscal Year 2 02 2-2 02 3 A nn ual B u d g et with a $2 .4 m illion t ran sfer from th e A m eri can Rescue P lan A ct F un d , th e th ird c ons ecu ti ve year that one- tim e m oney was necessary to b alance th e C ity's b ud g et.

O n J u l y 1 1, 20 22 , th e C hai r and C o-C h ai r of the C it y M anag er’s A d visory Pan el p resent ed to th e C ity C oun cil t heir fi nd in g s. Th e A d vis ory Pan el p rovi d ed several recom m en d at ion s for in creasing C i ty reven ues an d u nan im ously recom m end ed p lac in g a on e cen t (1 ¢) sal es tax m easure on an up com in g election and allow in g the voters of Up lan d to d ecid e th e outcom e.

O n J uly 25 , 20 22 th e M ayor and C i ty C ou n ci l d is cu ss ed t h e recom m en d at ion s of t h e A d visory Panel an d d i rec ted st aff t o b rin g fort h a res olu ti on p l aci n g a on e cen t (1¢) sales tax m easu re on t he N ovem b er 8 , 20 22 G en eral M u nicip al E lecti on. T h ere was un ani m ou s s u p p ort am on g C ity C ou n ci l for p rovid in g resi d en ts wi th an op t ion on the N ovem b er 2 02 2 b allot to con sid er a sales tax th at w ou l d p rovid e th e C it y w ith ap p roxim at ely $1 6 m i ll ion in l ocal ly con troll ed fu nd s p er year.

Page 2 of 9 ends

O n A u g u st 8 , d urin g p u b lic com m ent , fou r m em b ers of t h e p u b l ic s p oke reg ard in g th e sales tax m easure, with all b eing sup p ortive. A fter hearin g p u b lic com m ent an d ad d ition al d iscussion on th e d ias, C i ty C ou n ci l un anim ou sly voted to p l ace a G eneral Tax M eas u re - known as t he U p lan d P u b l ic S afety an d C ity S ervic es M eas u re - on t he b al lot for N ovem b er 8, 20 22 .

O n A u g u st 15 , 20 22 , t h e S an B ern ard in o C ou n ty Reg istrar of V oters assig n ed letter "L " to the Up lan d b allot m easu re.

O n A ug ust 1 5, 2 02 2, C ity C ou ncil held a p ub lic worksh op at a S p ecial C ity C ou ncil M eetin g and req u est ed th at S t aff b rin g b ack a res olu ti on id en tifyin g sp end in g p riorit ies for ad d ition al sales tax reven ue as p u b lic safet y and in fras tru c tu re. C ou n ci l al so req u est ed S taff b ri n g b ack a resol u t ion id en t ifyi n g th e C i ty C ou n ci l A d vi sory C om m i tt ee as t he citizens' oversig h t com m ittee for M easu re L.

I S S U E S /A N A L Y S I S
A d d itional sales t ax reven ue wou ld h ave a su b stan tial p ositive im p act on th e C i ty’s ab i li ty to red uce c ri m e; i m p rove 9 -1-1 resp on s e, enh anc e p rog ram s t o red uce d rug an d g ang activity; m aintain st reet s an d al leys ; keep p ub li c areas safe an d c lean , an d att rac t and retain local b u sinesses an d job s . H owever, i f resid ents ad op t M eas u re L , t he fu n d s w ould g o in to the C ity's G en eral F u nd , and b e availab le to sp end in any m ann er that C ity C oun cil sees fit.

Th e C it y h as con d u ct ed p u b l ic su rveys of th e c om m u n it y’s p riorit ies an d recom m en d ation s and ad vert ised th ese surveys on soc ial m ed ia, th e C ity w eb sit e, u ti li ty b ill in serts, an d the Up lan d Tod ay m ag azin e to en c ou rag e resid en t p articip at ion . T he su rvey req u es ted resid ents p rioritize C ity services for fu n d in g . Th e su rvey resu lt s s howed th at resi d en ts st ron g l y favored fun d ing p ub lic safet y an d p u b l ic in frastructu re, sp ecifically t he p avi ng of st reet s an d alleys.

A d d itionally, staff h as m et with com m un ity g rou p s to review th e survey resu lts and there h as b een g en eral con sen su s that th ese p riorities are an accu rate reflection of th e com m u nity.

C ity C ou nc il has rep eat ed l y id ent ified a p riorit izati on for ad d i ti on al fun d s i n t he C i ty t o b e in vested in p u b li c safety and in fras tu ct u re. A s su ch , th e res olu ti on attach ed t o th is staff rep ort for C ity C ou n c il 's con sid eration li st s t hos e two p u rp oses as th e p riorit y for sp end in g of ad d ition al tran s act ion s an d u se t ax reven ues sh ould M easu re L - th e U p lan d P ub lic S afety an d C ity S ervices M easure - b e ad op ted b y Up lan d voters.

I n ad d it ion , C i ty C ou ncil rec om m en d ed th e est ab l is h m en t of a citizen s' overs ig h t com m ittee for M eas u re L - t h e U p l and P u b lic S afety an d C ity S ervi ces M eas ure - as com p risin g the m em b ers of th e C ity C oun cil A d vis ory C om m it tee i f ad op ted b y U p lan d vot ers . Th e resolu tion attach ed to th is staff rep ort d oes just that.

F I S C A L I M P A C T S
Th ere is no fiscal im p ac t wi th th e resolu tions es tab li sh in g t ran sactions and u se t ax reven ue sp end in g p riorities or th e estab lishm ent of a citizen s' oversig ht com m ittee.

A L T E R N A T I V E S
P rovid e altern ative d irection to staff.

AT TAC HM E NT S :

Description
Resolution Committing to Spend F uture Transactions and Use (Sales) Tax Revenue for Certain P urposes
Resolution Appointing M easure L Oversight Committee

Page 3 of 9 ends

RESOLUTION NO. _______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

UPLAND, CALIFORNIA EXPRESSING ITS INTENT TO

PRIORITIZE SPENDING OF TRANSACTIONS AND USE
(SALES) TAX (TUT) REVENUE FOR PUBLIC SAFETY AND
INFRASTRUCTURE PURPOSES.

WHEREAS, the City Council of the City of Upland (“City”) is authorized to levy a Transactions and Use (Sales) Tax (TUT) for general purposes pursuant to California Revenue and Taxation Code section 7285.9, subject to approval by a majority vote of the electorate pursuant to Article XIIIC, Section 2 of the California Constitution (“Proposition 218”); and
WHEREAS, pursuant to California Elections Code Section 9222, the City Council has authority to place local measures on the ballot to be considered at a Municipal Election; and
WHEREAS, based upon the above, on August 8, 2022, the City Council of the City of Upland called a General Municipal Election to be held on November 8, 2022, for the purpose of submitting to the voters the question of whether to adopt an ordinance adding Chapter 3.06 to the Upland Municipal Code, which would enact a one percent (1%) TUT until it is ended by voters; and
WHEREAS, pursuant to the proposed measure/ordinance, the TUT is a general tax enacted solely to raise revenue for the general governmental use of the City and all of the proceeds from the tax shall be placed in the City's general fund and used for the usual current expenses of the City; and
WHEREAS, the general fund pays for important City services such as police and public safety services, street and public right-of-way operations, maintenance and improvement, community center and recreation services, and other general municipal services to the public; and
WHEREAS, the City Council desires to adopt this Resolution expressing this City Council’s intent, if the TUT measure is enacted by the voters, to commit to spend future TUT revenue for various purposes, with certain priorities for public safety and infrastructure purposes.

NOW, THEREFORE, the City Council of the City of Upland hereby finds, determines, and resolves as follows:

Section 1. Findings. The City Council finds that all of the preceding recitals are true and correct.

Section 2. Priorities for Spending TUT Revenue. The City Council hereby expresses its intent, if the TUT measure is enacted by the voters, to prioritize spending of future TUT revenue for the following purposes:

A. Public Safety: Future TUT revenue would be spent on the costs of providing public safety services, consisting of: police patrol, response, investigation,

Page 4 of 9 ends

Resolution No.

Page 2 ends

apprehension and law enforcement, emergency 9-1-1 response, gang prevention, code enforcement, and animal control.

B. Public Infrastructure: Future TUT revenue would also be spent on the costs of improving and maintaining streets, sidewalks and alleys, parks, and improvements in the public right-of-way.

Section 3. TUT Not Deemed a Special Tax. The adoption of this Resolution shall not be construed, and it is not the City Council’s intent, to convert the proposed TUT into a “special tax”, as that term is defined Article XIIIC §1(d) of the California Constitution, or California Government Code sections 53721 and 53724, or any combination thereof. Although this Resolution expresses the intent of the current City Council to prioritize spending future TUT revenues for certain purposes, the TUT shall remain a “general tax” as that term is defined in Article XIIIC §1(a) of the California Constitution and as set forth in the proposed TUT ordinance. In the event this Resolution is determined to convert the proposed TUT into a special tax, it shall be deemed void for all purposes.

Section 4. Certification. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions.

PASSED, APPROVED AND ADOPTED this 12th day of September, 2022.

_____________________________
Bill Velto, Mayor

I, Keri Johnson, City Clerk of the City of Upland, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 12th day of September, 2022, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAINED:

ATTEST:_______________________
Keri Johnson, City Clerk

Page 5 of 9 ends

RESOLUTION NO. _______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

UPLAND CALIFORNIA, ESTABLISHING THE MEASURE L
CITIZENS’ OVERSIGHT COMMITTEE AND ADOPTING

OPERATIONAL GUIDELINES FOR SAID COMMITTEE

WHEREAS, the City Council of the City of Upland (“City”) is authorized to levy a Transactions and Use (Sales) Tax (TUT) for general purposes pursuant to California Revenue and Taxation Code section 7285.9, subject to approval by a majority vote of the electorate pursuant to Article XIIIC, Section 2 of the California Constitution (“Proposition 218”); and
WHEREAS, pursuant to California Elections Code Section 9222, the City Council has authority to place local measures on the ballot to be considered at a Municipal Election; and
WHEREAS, based upon the above, on August 8, 2022, the City Council of the City of Upland called a General Municipal Election to be held on November 8, 2022, for the purpose of submitting to the voters the question of whether to adopt an ordinance adding Chapter 3.06 to the Upland Municipal Code, which would enact a one percent (1%) TUT until it is ended by voters; and
WHEREAS, the TUT measure will be identified on the November 8, 2022 ballot as Measure L; and
WHEREAS, pursuant to the proposed measure/ordinance, Measure L is a general tax enacted solely to raise revenue for the general governmental use of the City and all of the proceeds from the tax shall be placed in the City's general fund and used for the usual current expenses of the City; and
WHEREAS, in the event that Measure L passes at the November 8, 2022 General Municipal Election, the City Council desires to establish the “Measure L Citizens’ Oversight Committee”, whose purpose shall be to review and report on the revenues and expenditures of Measure L funds, and such other duties as prescribed by the City Council; and

WHEREAS, the City Council further desires to establish the guidelines that will govern the purpose, duties, appointment and membership requirements for the Measure L Citizens’ Oversight Committee.

NOW, THEREFORE, the City Council of the City of Upland hereby finds, determines and resolves as follows:

Section 1. Findings. The City Council finds that all of the preceding recitals are true and correct.

Section 2. Establishment of Measure L Citizen Oversight Committee and Operational Guidelines. Contingent upon the passage of Measure L at the November 8, 2022 General Municipal Election, the City Council hereby establishes the “Measure L Citizens’ Oversight Committee” and adopts the Operational Guidelines, attached

Page 6 of 9 ends

Resolution No.

Page 2 ends

hereto as Exhibit “A,” which are incorporated by this reference, to govern the purpose, duties, appointment and membership requirements for the Measure L Citizen Oversight Committee.

Section 3. Resolution Has No Further Effect if Measure L Does Not Pass. In the event that Measure L does not pass by a majority vote of the electorate at the November 8, 2022 General Municipal Election, the “Measure L Citizens’ Oversight Committee” shall not be established and this Resolution shall be void and of no further effect. .

Section 4. Certification. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions.

PASSED, APPROVED AND ADOPTED this 12th day of September, 2022.

_____________________________
Bill Velto, Mayor

AYES:

NOES:

ABSENT:

ABSTAINED:

ATTEST:_______________________
Keri Johnson, City Clerk

Page 7 of 9 ends

Resolution No.

Page 3 ends

EXHIBIT A

CITY OF UPLAND
MEASURE L CITIZENS’ OVERSIGHT COMMITTEE

OPERATIONAL GUIDELINES

Section 1. Committee Purpose

On November 8, 2022, Upland Voters approved, by a majority vote, the Upland Public Safety and City Services Measure, a general one percent (1%) transactions and use (sales) tax - Measure L.

By City Council Resolution No. __________, the City Council established this Committee to review and report on the revenues and expenditures of Measure L funds, and to perform such other duties as may be prescribed by the City Council.

These Guidelines are intended to implement the oversight provisions of Resolution No. ___________.

The Measure L Citizens’ Oversight Committee will convene at least biannually to review and report to the public and the City Council on the revenue and expenditures generated by Measure L. The Committee shall confine itself specifically to its obligations regarding Measure L funds. All revenue from other sources falls outside the scope of the Committee's review.

Section 2. Composition, Eligibility and Term of Membership.

A. The Committee shall consist of five (5) members appointed by the Council.

B. Eligibility to serve on the Committee and term of membership shall be limited to Upland residents and, to the extent applicable, Chapter 2.16 of the Upland Municipal Code.

C. Members of the Committee shall submit an annual statement of financial disclosure in compliance with the Political Reform Act, Government Code §§81000 et seq.

Section 3. Appointment Process.

The City Council will appoint members based on an application and interview process and as otherwise required by Section 2.16.020 of the Upland Municipal Code.

Section 4. Citizen Oversight Committee Procedures.

1. The Citizen Oversight Committee shall select a Chairperson and a Vice- Chairperson from among its members and establish the frequency of their meetings;

2. A simple majority of the Committee shall constitute a quorum and a simple majority of the quorum may decide business of the Committee;

Page 8 of 9 ends

Resolution No.

Page 4 ends

3. The Committee shall meet at such times as the Chairperson of the Committee deems appropriate in order to fulfill the duties of the Committee, but not less than biannually;

4. Committee members may be removed by the City Council as provided in section 2.16.030 of the Upland Municipal Code;

5. Committee Members shall comply with the attendance requirements of Section 2.16.050 of the Upland Municipal Code.

6. All Committee meetings will be held in compliance with the Ralph M. Brown Act, Government Code §§54950 et seq.

Section 5. Duties of the Citizen Oversight Committee.

The Citizen Oversight Committee shall act in an oversight capacity to review revenues and expenditures generated by the Upland Public Safety and City Services Measure - Measure L - a general one percent (1%) transactions and use (sales) tax approved by a majority of Upland voters at the November 8, 2022 General Municipal Election.

The Committee’s specific duties are to report to the City Council annually on the following:

 The revenue receipts and expenditures of Measure L funds;

 The status and performance of programs and services funded wholly or in part with Measure L funds.

Page 9 of 9 ends

Upland City CouncilSeptember 12, 2022

Upland City Council
September 12, 2022