Visalia City Council
May 15, 2023

Bidding Agency:_________________

EXHIBIT “A”

BID FORM
RFB NO. 22-23-37
Project: ANNUAL CONTRACT FOR ON-CALL CONCRETE

REPAIR/REPLACEMENT (CITYWIDE)

TO: THE CITY OF VISALIA PURCHASING DIVISION:

In compliance with the City’s Notice Inviting Sealed Bid s No. 22-23-37 dated: __________, the undersigned BIDDER hereby proposes to f urnish all materials, equipment, tools, labor appurtenances and incidentals required for the above stated project as set forth in the RFB, including all Exhibits and related contr act documents t herefore, and to perform all work in the manner and time prescribed therein.

BIDDER declares that this Bid is based upon careful examination of the work site, Instructions to BIDDERs, and the contract requirements. If this Bid is accepted for award, BIDDER agrees to enter into a contract with CITY at the unit and/o r lump sum prices set forth in the following Bi d Schedule.

BIDDER understands that a bid is required for the entire work and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. It is agr eed that all prices bid include all appurtenant expenses, taxes, royalties and fees. All bids will be checked for accuracy.

BIDDER hereby agrees to execute a contract with in ten (10) working days, or such further time as may be allowed in writing by th e Purchasing Division, after receiving no tification of t he acceptance of this Bid, and it is hereby mutually understood and agreed that in case the BIDDER does not, said Purchasing Division may proceed to award the contract to others.

BIDDER agrees to com mence the work on the start date agreed b etween BIDDER a nd Pro ject Manager, only after the contract is fully executed and Notice to Proceed has been issued.

BIDDER further d eclares that he/she has not either directly or indirectly entered into any agreement, parti cipated in any collusion, or ot herwise taken a ny act ion in restraint of free competitive bidding in connection with said bid.

Bid Award shall be awarded based on the Lowest Total Annual Cost, to the bidder whose bid is deemed both responsi ve and responsible and meets all requirements and qualifications specified in the request for bid. The quantities given on the Bid Proposal form and any related contract documents are estimates only. They are given as a basis for comparison of Bids. The City of Visalia does not, expressly or impliedly agree that the actual amount of work will correspond therewith and reserves the right to increase or decrease the amount of any class or portion of work, or to omit portion of the work, as the City deems necessary or advisable, at the prices Bid.

BIDDER has read and hereby agrees to the co nditions stated in this proposal by affixing his/her signature on the Bid Form.

In the case of discrepancies in amounts bid, unit prices shall govern over extended amounts.

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Item Description (as listed in Scope of
Work for RFP 22-23-37)
COV
Standard Unit Price
Est
Annual
Quantity
Extended
Amount

CURB TYPES
(projects vary from 3 lf to 200 lf)
1 Barrier Curb and Gutter Type A2-6 C-4 $ ________ lf 50 lf $ ________ 2 Barrier Type Curb and Gutter (Inf ill &
Replacement Only)
C-5 $ ________ lf 500 lf $ ________
3 Roll Type Curb and Gutter (Infill &
Replacement Only)
C-6 $ ________ lf 125 lf $ ________
4 Vee Gutter C-7 $ ________ lf 50 lf $ ________
5 Median Curb Type B1 -6, Retaining
Curb and Landscape Curb
C-8 $ ________ lf 25 lf $ ________

SIDEWALK TYPES
6 Sidewalk-Residential with Parkway
(projects vary from 12 sf to 200 sf)
C-9 $ _______ sf 720 sf $ ________
7 Sidewalk-Residential Adjacent to Curb
(projects vary from 12 sf to 200 sf)
C-10 $ _______ sf 780 sf $ ________
8 Sidewalk-Office/Commercial
(projects vary from 20 sf to 200 sf)
C-11 $ _______ sf 300 sf $ ________

CURB RETURNS WITH SIDEWALK CONNECTIONS
9 20’ Radius Curb Return with Sidewalk
Connection-Detail 1
C-13 ________ Ea 1 $ ________
10 20’ Radius Curb Return with Sidewalk
Connection-Detail 2
C-14 ________ Ea 1 $ ________
11 20’ Radius Curb Return with Sidewalk
Connection-Detail 3
C-15 ________ Ea 1 $ ________
12 30’ Radius Curb Return with Sidewalk
Connection
C-16 ________ Ea 1 $ ________
13 35’ Radius Curb Return with Sidewalk
Connection-Detail 1
C-17 ________ Ea 1 $ ________
14 35’ Radius Curb Return with Sidewalk
Connection-Detail 2
C-18 ________ Ea 1 $ ________

SIDEWALK GRINDING
15 Grind Concrete Sidewalk on Curb
(projects vary from 3 lf to 50 lf)
Exhibit
D-3
$ ________ lf 100 lf $ ________

DRIVE APPROACHES
16 Residential Drive Approach
(projects vary from 80 sf to 325 sf)
C-22 $ _______ sf 325 sf $ ________
17 Multi-Family Residential/Office/
Commercial Drive Approach
(projects vary from 125 sf to 550 sf)
C-23 $ _______ sf 550 sf $ ________
18 Office/Commercial Drive Approach
(Alternative-with Curb Returns)
(projects vary from 80 sf to 400 sf)
C-24 $ _______ sf 400 sf $ ________
19 Major Co mmercial Drive Approach 35 ’
Radius Curb Return
(projects vary from 120 sf to 1800 sf)
C-26 $ _______ sf 1800 sf $ ________
20 Major Commercial Drive Approach 3 5’
Radius Curb Return Alternative
(projects vary from 120 sf to 1800 sf)
C-27 $ _______ sf 1800 sf $ ________
21 Major Commercial Drive Approach 20 ’
Radius Curb Return
(projects vary from 100 sf to 1500 sf)
C-28 $ _______ sf 1500 sf $ ________
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Item
(cont’d)
Description (as listed in Scope of
Services for RFP 22-23-37)
COV
Standard Unit Price
Est
Annual
Quantity
Extended
Amount
22 Major Commercial Drive Approach 20 ’
Radius Curb Return Alternative
(projects vary from 100 sf to 1500 sf)
C-29 $ _______ sf 1500 sf $ ________
23 Detectable Warning Surface Detail C-33 ________ Ea 1 $ ________

MEDIANS
24 Stamped Concrete Median
(projects vary from 10 sf to 1000 sf)
C-35 $ _______ sf 50 sf $ ________
25 Median Nose Detail C-36 $ ________ lf 24 lf $ ________

DRAINAGE INLETS
26 Drainage Inlet D-12 ________ Ea 1 $ ________
27 Vee Gutter Drainage Inlet D-15 ________ Ea 1 $ ________

BUS PADS
28 Bus pad
(projects vary from 120 sf to 1680 sf)
TR-3 $ _______ sf 1680 sf $ ________
29 Bus Stops C & D
(projects vary from 560 sf to 1260 sf)
TR-5 $ _______ sf 1260 sf $ ________

MISCELLANEOUS
30 Provide Job Estimate N/A ________ Ea 30 $ ________

TOTAL ANNUAL COST
(Items 1-30)
$ _______________

(1) ________________________________________________________________________________________________ Bidding Firm

(2) ________________________________________________________________________________________________ Corporation, Partner, Joint Venture

(3) ________________________________________________________________________________________________ Business Address City State Zip Code

_________________________________________________________________________________________________ Telephone Number Fax Number E-mail Address

(4) ________________________________________________________________________________________________ Signature of Authorized Person (Date)

________________________________________________________________________________________________ Type or Print Authorized Person’s Name

PLEASE SEE THE FOLLOWING INSTRUCTIONS REGARDING SIGNATURE

(1) If the BIDDER is an in dividual, enter name here in style used in business; if a joint venture, exact name of en tities joining in the venture; if a partne rship, the correct trade sty le of the partnership; if a corporation, the exact name of the corporation.

(2) If BIDDER is oth er than an individual, identify here its character, i.e., joint venture, partnership, corporation, including the state of incorporation. If BIDDER is an individual operating under a trade name, state “an individual dba (trade name in full)”. 182
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(3) State on this line, the address to which all communications and notices regarding t he Bid Proposal, and any contract awarded thereunder, are to be addressed.

(4) If BIDDER is a joint venture, signature must be by one of the joint venturers, and if one or both of the joint venturers is a partnership or a corporation, each participating p artnership must sign by a general partner, and each corp oration by an a uthorized off icer or employee; if a partnership, by a general partner; if a corporation, by an authorized offi cer or employee. The title of the person signing must appear after his/her signature. W here BIDDER is a partnership or corporation, the names of all other general partners, or the president or secretary of the corporation and their business addresses must be shown below.

Note: All names must be typewritten under written si gnature. All Addresses must be complete with street number, city, state and zip code.

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BIDDING AGENCY:_________________

SUBCONTRACTORS
The undersigned hereby designates b elow for the project, opposite various portions of the work, the names and locations of the places of business of each subcontractor who will perform work or labor in an amount in excess of one -half of one percent (1/2 of 1%) of the of the total bid. All work not listed below shall be performed by the undersigned BIDD ER. I t is understood that the BIDDER, if awarded the contr act, shall not substitute any subcontractor in place of the subcontractors here in designated without the approval of the Project Manager.

SUBCONTRACTOR INFORMATION & TRADE CLASSIFICATION (CIRCLE ALL THAT APPLY)

1. Subcontractor Name:

Asbestos

Boilermaker

Bricklayers

Carpenters

Carpet/Linoleum

Cement Mason

Drywall Finisher

Drywall/Lathers

Electricians

Elevator Mechanic

Glaziers

Iron Worker

Laborers

Millwrights

Operating
Engineers

Painters

Pile Drivers

Pipe Trades

Plasterers

Roofers

Sheet Metal

Sound/Comm

Surveyors

Teamster

Tile Worker
Business Address:

Email Address:

CSLB # Expires:

DIR Registration #

2. Subcontractor Name:

Asbestos

Boilermaker

Bricklayers

Carpenters

Carpet/Linoleum

Cement Mason

Drywall Finisher

Drywall/Lathers

Electricians

Elevator Mechanic

Glaziers

Iron Worker

Laborers

Millwrights

Operating
Engineers

Painters

Pile Drivers

Pipe Trades

Plasterers

Roofers

Sheet Metal

Sound/Comm

Surveyors

Teamster

Tile Worker
Business Address:

Email Address:

CSLB # Expires:

DIR Registration #

3. Subcontractor Name:

Asbestos

Boilermaker

Bricklayers

Carpenters

Carpet/Linoleum

Cement Mason

Drywall Finisher

Drywall/Lathers

Electricians

Elevator Mechanic

Glaziers

Iron Worker

Laborers

Millwrights

Operating
Engineers

Painters

Pile Drivers

Pipe Trades

Plasterers

Roofers

Sheet Metal

Sound/Comm

Surveyors

Teamster

Tile Worker
Business Address:

Email Address:

CSLB # Expires:

DIR Registration #

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If more space is needed to list addition al subcontractor and trade classifications, please list remaining subcontractors on a separate sheet of paper (providing all of th e requested information for each subcontractor) and submit with Bid.

CITY OF VISALIA BUSINESS TAX CERTIFICATE #__________________________________ A City Business Tax Certificate (licen se) is not required to submit a bid; however, vendor is required to obtain a certificate prior to commencement of work regardless of whether the business address is actually locate d within the City. Contact the Business Tax Division with questions at (559) 713- 4326.

CONTRACTOR’S PERMIT INFORMATION

License Number: ___________________________________
License Classification: _____________________________
Expiration Date: ____________________________________

DIR REGISTRATION#: ____________________________

CONTRACTOR’S REFERENCES
The following are the nam es, addresses, a nd telephone numb ers for at least three (3) public agencies for w hich BIDDER has performed work similar in size and scope within the past two (2) years.

Company Name Address Tel. No. Contact

1.________________________________________________________________________________________________

2.________________________________________________________________________________________________

3.________________________________________________________________________________________________

DESIGNATION OF SURETIES
The following are the names, addresses, and telephone numbers for all brokers an d sureties f rom whom BIDDER intends to procure insurance.

Company Name Address Tel. No. Type

__________________________________________________________________________________________________

__________________________________________________________________________________________________

__________________________________________________________________________________________________

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EXHIBIT “B-1”

BIDDER’S STATEMENT ON PREVIOUS CONTRACTS

SUBJECT TO EQUAL EMPLOYMENT OPPORTUNITY CLAUSE
(EXECUTIVE ORDER 11246)

The BIDDER shall complete the following statement by checking the appropriate blanks:

The BIDDER has_____ has no t _____ participat ed in a previous contract subject to the Equal Employment Opportunity Clause prescribed by Executive Order 11246, as amended, of Septe mber 24, 1965.

The BIDDER has _____ has not _____ submi tted all compli ance reports in connection with a ny such contract due under the applicable filing requirements; and that represe ntations indicating submission of requ ired complia nce reports signed by p roposed subBIDDERs will be awarded prior to award of subcontracts.

If the BIDDER has participated in pr evious contracts s ubject to the Equal Employment Opportunity Clause and has not submitted compliance reports due unde r applicable filing requirements, t he BIDDER shall submit a compliance report on Standard F orm 100, “Employee Information Report EEO- I” prior to award of the contract.

Note: Failure to complete the blanks may be grounds for rejecting the bid.

Company: ______________________________________________

Business Address: ______________________________________________

Signature: ______________________________________________

Name of Signing Official: ______________________________________________

Title of Signing Official: ______________________________________________

Date: ______________________________________________

Company Seal:

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EXHIBIT “B-2”

EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE CERTIFICATE
(EXECUTIVE ORDER 11246)

To Accompany Bid Form

Equal Opportunity Clause
Unless exempted by rules, regulations or orders of the Se cretary of Labo r issued pursuant to Executive Orders 10925, 11114 or Section 204 of Executive Order 11246 of September 24, 1965, during the performance of each contract with the City of Visalia, the BIDDER agrees as follows:

1. The BIDDER will not discrim inate against a ny employee or applicant for empl oyment because of race, color, religion, gender, national origin or political af filiation. The BIDDER will take affi rmative action to ensure that appli cants are employed, and that employees are treated durin g employment, w ithout regard to their race, colo r, religion, gende r, national origin or political affiliation. Such action shal l include, but not be limited to, the following:
employment upgrading, d emotion or transfer, recruitment or recruitment advertis ing, layoff or termination, rates of pay or othe r forms of compens ation, and selection for training, including apprenticeship. The BIDDER agrees to post in conspicu ous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.

2. The BIDDER will, in all solicitation s or advertisements for employees, pl aced by or on behalf of the BIDDER, state that all qualified applicants will receive consid eration for emp loyment without regard to race, color, religion, gender, national origin or political affiliation.

3. The BIDDER will send to each labor union or rep resentative of workers with which h e has a collective bargaining agreement or other contrac t or understand ing, a notice to be provided by the agency contract ing officer, advising the labor union or the workers’ represen tative of the BIDDER’s commitments un der Section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of th e notice on con spicuous places available to empl oyees and applicants for employment.

4. The BIDDER will comply with all provis ions of Executive Order 11246 of Sept ember 24, 1965, and the rules, regulations and relevancy orders of the Secretary of Labor.

5. The BIDDER will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rul es, regulations and relevant orders o f the Secret ary of Labor, or pursuant thereto, and will permit access to his books, records and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders.

6. In the eve nt of the BIDDER’s non -compliance with the non -discrimination clauses of this subcontract or w ith any of such rules, regulation s or orders, this subcontract may be canceled, terminated or suspended, in whole , or in part and t he BIDDER may be de clared ineligible for further gover nment contracts in accordance with the procedures author ized in accordance with Executive Order 11246 of September 24, 196 5, and such other sanctions may be imposed and remedies invoke d as provided in E xecutive Order 1124 6 of Septemb er 24, 1965, or by rule , regulation or order of the Secretary of Labor, or othe rwise provided by law.

7. The BIDDER will include the provisions of Paragraphs (1) through (7) in every subcontract or purchase order unless exem pted by rules, regu lations or o rders of the Secretary of Labor issued pursuant to Section 204 of Executive Ord er 11246 of Sep tember 24, 1965, so that such provisions will be bi nding upon each SUBBIDDER or vendor. The BIDDER will take such action wi th resp ect to any subcontr act or purch ase order as the contra cting agency may direct as a means of enforcing such pro visions including sanctions for non -compliance. 187
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Provided, however, that in the event the BIDDER becomes involved in, or is thre atened with litigation with a SUBBIDD ER or vendor as a result of such di rection by the contracting agency, the BIDDER may reques t the United St ates to enter into such litigatio n to protect the interest of the United States.

Company: ______________________________________________

Business Address: ______________________________________________

Signature: ______________________________________________

Name of Signing Official: ______________________________________________

Title of Signing Official: ______________________________________________

Date: ______________________________________________

Company Seal:
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EXHIBIT “B-3”

CERTIFICATE OF NONSEGREGATED FACILITIES
(BIDDERS/SUBCONTRACTORS)

1. “Segregated facilities,” as used in this provisio n, means an y waiti ng rooms, work area s, rest rooms and wash rooms, resta urants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lo ts, drinking fount ains, recreation or entertainment areas, transportation, and h ousing facilities provided for employ ees, that ar e segregated by explici t directive or are in fact segregated on the basis of ra ce, color, religion, or national origin, because of habit, local custom, or otherwise.

2. By the submission of a bid, the BIDDER certifies that it does not and will not maintain or provide for its employees any segregated facilities at any of its establish ments, and that it does not and will not permit its employees to p erform their services at any location under its control where segregated facilities are maintained. The BIDDER agrees that a breach o f this certification is a violation of the Equal Opportunity clause in the contract.

3. By submission o f the bid, the BID DER further agrees that (except where it has obtained identical certifications from proposed SUBCONTRACTORs for specific time periods) it will:

(a) Obtain identical certifications from proposed SUBCONTRACTORs before the award of subcontracts under which the SUB-BIDDER will be subject to the Equal Opportunity clause;
(b) Retain such certifications in its files; and

(c) Forward this certification and the following notice to the proposed SUBCONTRACTORs:

NOTICE OF PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT

FOR CERTIFICATION OF NONSEGREGATED FACILITIES

A certificate of Nonsegre gated Facilities must be submitted b efore the aw ard of a subcontract un der which the SUBCONTRACTOR will be subject to the equal Opportunity clause. The certification may be submitted either for each SUBCONTRACTOR for all subcontracts during a period (i.e. , quarterly, semi- annually, or annually).

4. By commencing performance of the Contract work, the selected BIDDER certifies to t he Nonsegregated Facilities provisions above.

Company: ____________________________________________________________________________

Business Address: ____________________________________________________________________________

Signature:_______________________________________________ Date:________________________________

Name of Signing Official (Print or Type) :________________________________ Title of Signing Official:__________________________________________ Company Seal:
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EXHIBIT “B-4”

NON-COLLUSION AFFIDAVIT
To Accompany Bid Form

STATE OF CALIFORNIA )
) ss

CITY OF VISALIA )

_________________________, be ing first duly sworn, deposes and s ays that he or she is _________ of __________ the party making the foregoing Bid; that the Bid is not made in th e interest of, or on behalf of, any undisclosed per son, partnership, company, association, organization, or c orporation; that the Bid is genuine and not col lusive or sham; that the BIDD ER has not directly or indirectly induced or solic ited any other BIDDER to put in a false or sham Bid, a nd has not directl y or indirectly colluded, conspired, connived, or agreed w ith any BIDDER o r anyone else to pu t in a sham Bid, or that anyone shall ref rain from Bidding; that the BIDDER has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the Bid price of the BIDDER o r any other BIDDER, or to fix any o verhead, profit, or cost element of the B id price, or of that of any other BIDDER, or to se cure any advantage against the public body awarding the contract of anyo ne interested in the proposed contract; that all statement s contained in the Bid are true; an d, further, that the BIDDER has not, dire ctly or indirectly, submitted his or her Bid price or any breakdown the reof, or the contents thereof, or divulged informat ion or data relative thereto, or paid, and will not pay, a ny fee to any co rporation, partners hip, company association, organization, b id depository, or to any member or agent thereof t o effectuate a collus ive or sham Bid.

Company: ______________________________________________ Business Address: ______________________________________________ Signature: ______________________________________________ Name of Signing Official: ______________________________________________ Title of Signing Official: ______________________________________________ Date: ______________________________________________

Company Seal:

State of California

County of ________________________

On this __________ day of _______________before me, ___________________________________________, a Notary Public,
personally appeared ____________________________________________,who proved to me on the basis of satisfactory evidence to be the person (s) whose name(s) is/are subscribed to the within instrument and ackno wledged to me that he/she/they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct
WITNESS my hand and official seal.

Signature __________________________________ (Seal)

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EXHIBIT “B-5”

WORKERS’ COMPENSATION INSURANCE CERTIFICATE
(CALIF. LABOR CODE § 3700)

To Accompany Bid Form

STATE OF CALIFORNIA )
) ss

CITY OF VISALIA )

I am aware of the provisions of Sect ion 3700 of the Labor Code which requires every e mployer to be insured against liability for workers’ co mpensation or to u ndertake self -insurance in accordance with the provision s of th at code, a nd I will comply wi th such prov isions before commencing the performance of the work under this contract.

Company: ______________________________________________

Business Address: ______________________________________________

Signature: ______________________________________________

Name of Signing Official: ______________________________________________

Title of Signing Official: ______________________________________________

Date: ______________________________________________

Company Seal:

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EXHIBIT “B-6”

CERTIFICATION OF ANTI-KICKBACK COMPLIANCE CERTIFICATE
(48 Stat. 948; 62 Stat. 740; 63 Stat. 108; Title 18 U.S.C. § 8741; and 40 U.S.C. (c))

By submiss ion of a Bid, the BIDDER certifies that it has read the “Anti-Kickback Pr ocedures,” contained in the RFB and that neither it nor any o f its employees has performed or participated in any prohibited actions , as defined in that provision, r elating to the awa rd of the Contract. By commencing performance of the Co ntract work, the selected BIDDER cer tifies to An ti-Kickback Compliance.

Company: ______________________________________________

Business Address: ______________________________________________

Signature: ______________________________________________

Name of Signing Official: ______________________________________________

Title of Signing Official: ______________________________________________

Date: ______________________________________________

Company Seal:

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EXHIBIT “B-7”

AMERICANS WITH DISABILITIES ACT COMPLIANCE CERTIFICATE

By submission of a bid, the BIDDER certifies it will comply with the Americans with Disabilities Act, 42 U.S.C., 12101 et. seq., and will m aintain compliance throughout the life of this Contract. By commencing performance of the Contract work, the selected BIDDER certifies to the Americans with Disabilities Act compliance.

Company: ______________________________________________

Business Address: ______________________________________________

Signature: ______________________________________________

Name of Signing Official: ______________________________________________

Title of Signing Official: ______________________________________________

Date: ______________________________________________

Company Seal:

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EXHIBIT “B-8”

CITY OF VISALIA
Ownership Disclosure for Contractors and
Consultants
To Accompany Proposal

NAMES OF PRINCIPALS, PARTNERS, AND/OR TRUSTEES:

Firm Name:_______________________________

Firm Address:____________________________

List the names of all principals, partners, and/or trustees. For corporations provide names of officers, directors and all stockholders owning more than 10% equity interest in corporation:

Submitted by: Name __________________________________________________________ Date __________________________________________________________

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EXHIBIT “B-9”

To Accompany Bid

STATE OF CALIFORNIA

DRUG-FREE WORKPLACE CERTIFICATION
STD.21 (REV.12-93)

CERTIFICATION
I, the official named bel ow, hereby swear that I am duly authorized legally to bin d the contract or or grant recipient to the certification described below. I am fully aware that this certification, executed on the date below, is made under penalty of perjury under the laws of the State of California.

CONTRACTOR/BIDDER FIRM NAME

FEDERAL ID NUMBER
BY (Authorized Signature)

DATE EXECUTED

PRINTED NAME AND TITLE OF PERSON SIGNING TELEPHONE NUMBER (Include Area Code)

( )
TITLE

CONTRACTOR/BIDDER FIRM’S MAILING ADDRESS

The contractor or grant recipient named above hereb y certifies com pliance with Government Code Sect ion 8355 in matters relating to providing a drug-free workplace. The above-named contractor or grant recipient will:

1. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code Section 8355(a).

2. Establish a Drug-Free Awareness Program as required by Government Code Section 8355(b), to inform employees about all of the following:

(a) The dangers of drug abuse in the workplace,
(b) The person’s or organization’s policy of maintaining a drug-free workplace, (c) Any available counseling, rehabilitation and employee assistance programs, and (d) Penalties that may be imposed upon employees for drug abuse violations.

3. Provide as required by Government Code Section 8355©, that every employee who works on the proposed contract or grant:
(a) Will receive a copy of the company’s drug-free workplace policy statement, and (b) Will agree to abide by the terms of the company’s statement as a condition of employment on the contract or grant.

4. At the election of the contractor or grantee, from and after the “Date Executed” and until ____________ (NOT TO EXCEED 36 MONTHS), the state will regard this certificate as valid for all contracts or grants entered into between the contractor or gra ntee and this state agency without r equiring the contractor or grantee to provide a new and individual certificate for each contract or grant. If the contractor or grantee elects to fill in the blank date, then the terms and conditions of this certificate shall have the same force, meaning effect and enforceability as if a certificate were separately, specifically, and individually provided for each contract or grant between the contractor or grantee and this state agency.
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EXHIBIT “B-10”

To Accompany Bid

IRAN CONTRACTING ACT CERTIFICATION
(Public Contract Code Section 2200 et seq.)

As required by California Public Contract Code Section 2204, the Contractor certifies subject to penalty for perjury that the option checked below relating to the Contractor’s status in regard to the Iran Contracting Act of 2010 (Public Contract Code Section 2200 et seq.) is true and correct:

⃝ The Contractor is not:
(1) Identified on the current list of persons and entities engaged in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code Section 2203; or

(2) A financial institution that extends, for 45 days or more, credit in the amount of $20,000,000 or more to any other person or entity identified on the current list of persons and entities engaging in investment activi ties in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code Section 2203, if that person or entity uses or will use the credit to provide goods or services in the energy sector in Iran.

⃝ The City has exempted the Contractor from the requirements of the Iran Contracting Act of 2010 after making a public finding that, absent the exemption, the City will be unable to obtain the goods and/or services to be provided pursuant to the Contract.

⃝ The amount of the Contract payable to the Contractor for the Project does not exceed $1,000,000 over the life of the contract (up to 5 years).

Signature:_________________________________ Printed Name:_______________________

Title:_____________________________________ Agency Name:___________________________

Date:____________________

Note: In accordance with Public Contract Code Section 2205, false certification of this form shall be reported to the California Attorney General and ma y result in civil penalties equal to the greater of $250,000 or twice the Contract amount, termination of the Contract and/or eligibility to bid on contracts for three years.

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EXHIBIT “B-11”

To Accompany Bid

CLEAN AIR AND WATER POLLUTION CONTROL CERTIFICATION
(AIR 42 U.S.C. § 7401 et seq., 40 CFR Part 15.61, 49 CFR Part 18; WATER: 33 U.S.C. § 1251)

BIDDER agrees that any facility to be used in the performance of the contract, or to benefit from the contract, is not listed on the Environmental Protection Agency List of Violating Facilities.

BIDDER also agrees to comply with all the requirements of Section 114 of the Clean Air Act, as amended, 42 U.S.C. 1857 et seq. and Section 308 of the Federal Water Pollution Control Act, as amended 33 U.S.C. 1251 et seq. relating t o the inspection, monitoring, entry, reports and information, as well as all other requirements specified in Section 114 and Sectio n 308 of the Acts, respectively, and all other regulations and guidelines issued thereunder.

BIDDER agrees that as a conditi on for award of the contract, the BIDDER will notify the awarding official of the receipt of any communication from the EPA indicat ing that a facility to be used for the performance of, or benefit from, the contract is under consideration to be listed on t he EPA List of Violating Facilities.

Company:

Business Address:

Signature:

Name:

Title:

Date:

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EXHIBIT “C”
S A M P L E (does not need to be submitted with Bid)

ANNUAL CONTRACT FOR ON-CALL CONCRETE REPAIR/REPLACEMENT (CITYWIDE) (City of Visalia Bid No. 22-23-37)

This Agreement, entered in to and effective this ________ da y of _____________ ___, 20 23 [“Effective Date”], by and between the Ci ty of V isalia, hereinafter referred to as the “CITY”, and ____________________________ hereinafter referred to as the “CONTRACTOR”, “BIDDER”, or “SUBRECIPIENT”.

R E C I T A L S

WHEREAS, CONTRACTOR is an ____________________ (insert individual or entity t ype) wi th a primary business address of ____________________ and SSN or EIN: ____________________; and

WHEREAS, CITY is a municipal corporation and Charter Law City; and

WHEREAS, City of Visalia reviewed and evaluated responses to the Bid and determined to award an contract to CONTRACTOR for the Annual Project; and

WHEREAS, CONTRACTOR represents it is licensed, quali fied and willing to complete the Proj ect pursuant to terms and conditions of this Agreement.

NOW, THEREFORE, CITY and CONTRACTOR agree as follows:

1. TERM:

The term of this Agreement shall commence on the Effective Date and expire upon completion of all obligations of the parties, unless earlier terminated by the parties. The initial contract term shall be for a twelve (12) month period and s hall, a t the City’s option and with th e consent of the CONTRACTOR , be extended ann ually thereafter for four (4) cons ecutive one-year periods. CITY will be presumed to request renewal unless the CITY delivers a written notice of non -renewal to the CONTRACTOR a minimum of thirty (30) days prior to the renewal date. If the CONTRACTOR elects not to consent to renewal b y the CITY, then they must provide the CITY Project Manager with written notice of non -renewal at least thirty (30) days prior to the renewal date. Additionally, this Agreement may be terminated for convenience by the CITY, in w hole or in part, by giving t he CONTRACTOR fifteen (15) days’ written notice of the intent to terminate whenever the City determines that termination is in the best interest of the City. In the event of termination or expiration of this Agreement, CONTRACTO R shall transfer to CITY any funds and/or accounts receivable on hand attributable to the use of CITY funds.

2. ATTACHMENTS INCORPORATED:

The following are attachment s for this Agreeme nt. Said attachments are incorporated into this Agreement as if included in full in the body:

ATTACHMENT NO. DESCRIPTION OF ATTACHMENT
Attachment 1 General Contract Provisions
Attachment 2 Insurance Requirements
Attachment 3 City of Visalia Bid 22-23-37, Annual Contract for On-Call Concrete Repair Attachment 4 CONTRACTOR’s bid in response to Bid No. 22-23-37

3. CONTRACTOR SCOPE OF SERVICES and COMMITMENTS*:

CONTRACTOR shall provide the following services for the stated compensation on or bef ore the stated completion dates (“Scope of Services”):

All work described in Scope of Services in Bid No. 22-23-37. 198
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4. CITY COMMITMENTS:

CITY shall perform the following tasks on or before the stated completion dates:

TASK COMPLETION DATE
Pay Contractor as work is completed and invoiced As requested by Contractor

5. COMPENSATION:

CITY sha ll p ay CONTRACTO R compensation for services as indicated in Paragra ph 4 above; however, CITY s hall pay not more than the following amount as total compensation under this Agreement, unless otherwise agreed in writing. Such sum shall be expended and paid by CITY on a reimbursement basis for services actually performed bas ed on invoices, receipts, t ime sheets and similar documents presented by CONTRACTOR to CITY.

6. CONTRACT PRICE ADJUSTMENTS:

All prices quoted in response to this Invitation to Bid shall be firm and fixed for twelve (12) months from the annual anniversary date of the agreement. In order to protect the interests of the City and to give the vendor a reasonable basis for bidding, a price adjustment feature is hereby incorporated into the specifications. Prices b id by vendor may be adjusted annually at ti me of contract renewal and upon mutual agreement of the parties to the contract to allow for price increases or decreases for labor and benefit rates, supplies and materials.

It will be the responsibility of the contractor to request a price adjustment a nd to provide all documentation necess ary. The request for price adjustment must be submitted to the project manager in writing a minimum of thirty (30) but no sooner than ninety (90) calendar days prior to the a nnual anniversary date of the agreement. R equests filed after th is t ime-period w ill not be considered.

The unit prices for the ensuing contracts shall be based on the movement of the unadjusted figures of the U.S. Department of Labor Consumer Price Index (CPI) for all Urban Consumers (CPI -U All Cities Average). The c ontract unit prices may be changed in an amount equal to the percentage of movement for the most recent twelve-month period.

In no instance shall the price increase exceed 5%. The contract unit price changes as a result of this formula shall be binding on the contractor for the subsequent contract year. The adjustment of the unit bid price shall not be retroactive and shall apply only to changes incurred after approval.

7. EXECUTIVE ORDER N-6-22 – RUSSIA SANCTIONS On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukrai ne, as well as any san ctions imposed u nder state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State determine Contractor is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this agreement. The State shall provide Contractor advan ce written notice of such termination, allowing Contractor at least 30 calendar days to provide a written response.

Termination shall be at the sole discretion of the State.

Total Compensation: $ Not to exceed contracted bid amount Source of Funds: Local Revenues
Payment Schedule: Within 30 days from date of invoice for completed work 199
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IN WITNESS WHEREOF, this Agreement is executed on the day and year first above written.

CONTRACTOR

Dated: ___________________ By:______________________________________________________ Authorized Officer: I certify under penalty of perju ry under the laws of the State of California that I am fully authorize d to execute this Agreement for CONTRACTOR in the capacity I have stated, and that such execution is sufficient to bind the CONTRACTOR.

CITY OF VISALIA

Dated: ____________________ By:__________________________________________________ City Manager

Dated: ____________________ By:___________________________________________________ City Attorney

Dated:____________________ By:___________________________________________________ City of Visalia Risk Manager

Dated: ____________________ By:___________________________________________________ City of Visalia Project Manager
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Exhibit “C”
Attachment 1

GENERAL CONTRACT PROVISIONS

A. Successors and As signs: This Agreement sha ll be binding upon and shall inure to the benefit of any successors to or assigns of the parties.

B. Prohibition of Assignment: Neither party shall assign, delegate or transfer their rig hts and duties in this Agreement without the written consent of the other party.

C. Notices: Notice shall be sufficient hereunder if personally served upon the City Clerk of the CITY or an off icer or principal of the CONTRACTOR, or if sent via the United St ates Postal Service, postage prepaid, addressed as follows:

CITY OF VISALIA CONTRACTOR
707 W. Acequia Ave. _______________________
Visalia, CA 93291 _______________________
Attention: City Clerk Attention: _____________

D. Independent Con tractor: It is understood and agreed by the p arties herein that CONTRACTOR, in the perfo rmance of this Agreement, shall act as an i ndependent contractor, and therefore shall obtain no rights to any fringe benefits that accrue to regular full-time CITY employees.

E. Jurisdiction/Venue/Waiver Of Removal : This Agreement shall be administered and interpreted under the laws of t he State of California. Jurisdiction of litigation arising from this Ag reement shall be in California. Any action brought to interpret or enforce this Agreement, or any of the term s or conditions hereof, s hall be brought in Tulare County, California. Th e CONTRACTOR hereby expressly waives any right to remove any action to a county other than Tulare County as permitted pursuant to Sectio n 394 of the California Code of Civil Procedure.

F. Integration/Modification: This Agreeme nt an d each of the documents an d exhibits o r attachments referenced herein, which are incorporated by r eference, represents the entire understanding of the parties as to those matters contained herein. No prior o ral or written understanding shall be of an y for ce or effect with respect to those mat ters covered hereunder. This Agreement may not be modified or altered except in writing signed by the parties, unless otherwise explicitly authorized.

G. Conflict With Law : If any part of this Ag reement is found t o be in conflict with applicabl e laws, such part shall be inoperative, null and void insofar as it is i n conflict with said law, but the remainder of the Agreement shall be in full force and effect.

H. Indemnification: The CONTRACTOR waive s any and all clai ms and recourse against the CITY, including the right of contribution of loss or damage to person or pr operty arising from, growing out of, or in any way connected wit h or incidental to the CONTRACTOR’s performance of this Agreement, exce pt claims arising from the concurrent or sole neg ligence of t he CITY or its officers, agents or employees. The CONTRACTO R will indemnify, hold harmless, and defend (at CITY’s option) t he CITY against any and all claims, demands, damages, costs, expenses, or liability arising out of the CONTRACTOR’s perf ormance of this Agreement except for liability arising out of the concur rent or sole negligence of the CITY or its officers, agents, or employees.

I. Guarantees and Warranties:

1. IN GENERAL: All guarantees and warranties specifically called for by the specifications and/or this Agreement shall expressly run to the benefit of the CITY.

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2. ONE YEAR GUARANTEE : Besides guarantees required elsewhere, CONTRACTOR shall and hereby does guarantee the project work for a period of o ne year after the date of acceptance by CITY.

3. WARRANTIES: Warranties required by the Invitation to Bid, or this Agreement shall commence on the date of acceptance of the work by CITY, unless otherwise provi ded in a Certificate of Substantial Completion.

CONTRACTOR warrants tha t the materials and equipment furnished under the Agreement will be new a nd of recent manufacturer unless otherwise specified, and that all w ork will be of good quality, free from fau lts and defects, and in confo rmance with the Agreement. Work that does n ot conf orm ma y be considered defective. This warranty excludes remedy fo r damage or defect caused by abuse, modifications not executed by th e CONTRACTOR, improper or insufficient mai ntenance, improper operation, or normal wear an d tear under normal usage.

CONTRACTOR warrants that title to all work covered by an application fo r payment will pass to the CITY either by incorporation in the construction or upon the receipt of payment by the CONTRACTOR, whichever occurs first, free and clear of all liens.

CONTRACTOR warrants and guarantees that title to all work, materials, and eq uipment covered by any application for payment, whether incorporated in the project or not, will pass to CITY no later than the time of payment free and clear of all liens.

No materi als or supplies for the project shall be purchased by the CONTRACTOR or SUBCONTRACTOR subject to any mortgage or under a condition of sale co ntract or other agreement by which an interest is retained by the seller. CONTRACTOR warrants that it has good title to all materials and supplies used by it in the project, free from all liens.

CONTRACTOR shall indemnify and hold CITY harmless from al l claims growing out of the lawful demands of SUBCONTRACTORS, laborers, workers, mechanic s, material persons, and f urnishers of machinery and parts thereof, equipment, power tools, and all supplies, incurred in furtherance of the performance of this Agreem ent. CONTRACTOR shall, at CITY’s request, furnish satisfactory evidenc e that all obligat ions of the nature here an d above designated have been paid, discharged, or waived. If CONTRACTOR fails to do so, then CITY may, after having served written notice on the CONTRACTOR, either pay directly unpaid bills, of which the CITY ha s written notice, or withhold from the CONTR ACTOR’s unpaid compensation a sum of money deemed reasonably sufficient t o pay any and all such lawful claims until satisfactory evidence is furnished that all liabilities have been f ully discharged where upon pa yment to the CONTR ACTOR shall be resumed, in accordance of the terms of this Agreement, but in no event shall the pro visions of this sentence be construed to impose any obligations on t he CITY to either the CONTRACTOR or its su rety.

In paying any unpaid b ills of the CONTRA CTOR, the CITY shall be de emed the agent of the CONTRACTOR and any payment so made by the CITY shal l be considered as payment made under the contract by the CITY to th e CONTRACTOR and the CITY shall not be lia ble to the CONTRACTOR for any such payments made in good faith.

Any defective work that is either corrected or replaced shall be warrantied and g uaranteed for a period of one year from the date of such correction or replacement.

J. Attorney’s Fees : In t he event either party commen ces any action, ar bitration or legal proceedings fo r the e nforcement of this Agreement, the prevailing party, as deter mined by the court or arbitrator, shall be entitled to recovery of its attorney’s fees and court costs incurred in the action brought thereon.

K. Headings: Section headings are provided for organizational purposes only and do not in any manner affect the scope or intent of the provisions thereunder.

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L. Firearms Prohibited: Guns may not be carried by contractors /vendors/consultants while working on City of V isalia premises without t he e xpressed written approval of a City of Visalia Department Head, or an exemption in the contract. If a contractor/ vendor/consultant is caught carrying a gun, without City permissi on, their contract will be terminated.

M. Executive Order N -6-22 – Russia Sanctions On March 4, 2022, G overnor Gavin Newsom issued Executive Order N -6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in respons e to Russia’s actions in Ukraine , as well as any sanctions imposed under state law. By submitting a bid or proposal, Contractor represents that it is not a target of Economic Sanctions. Should the State determine Contractor is a target of Economic Sanctions or is conducting prohibited tr ansactions with sanctioned individuals or entities, that shall be grounds for rejection of the Contractor’s bid/proposal any time prior to contract execution, or, if determined after contract execution, shall be grounds for termination by the State.

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Exhibit “C”
Attachment 2

INSURANCE REQUIREMENTS

1. CONTRACTOR Insurance. CONTRACTOR, at its sole co st and expense, for the full term of this Agreement (and any exten sions thereof), shall obtain and maintain at a minimum compliance with all of the followi ng insurance coverage(s) and requirements. Such insurance coverage shall be primary coverage as resp ects CITY and any insurance or self -insurance maintained by CITY s hall be in excess of CONTRACTOR’s insurance coverage and shall not contribute to it.

2. Subcontractor(s’) Insurance . If CONTRACTOR utilizes one or more subcontractors in the performance of th is Agreement, CONTRACTOR shall obtain and maintain independent insurance as to each subcontractor or otherwise provide evi dence of insura nce coverage for each subcontractor equivalent to that required of CONTRACTOR.

3. Types of Insurance and Minimum Limits . The following types of insurance and minimum limits are required providing at least the following minimum coverage and limits of liability:

a. Worker’s Com pensation written in accordan ce w ith the laws of the State of California providing coverage for any a nd all employees of CONTRACTOR in the minimum statutorily required coverage amounts.

b. Automobile Liability Ins urance for e ach of CONTRACT OR’s vehicles used in the performance of this A greement, in cluding owned, non -owned (e.g. owned by CONTRACTOR’s employe es or contractors), leased or hired vehicles, in the minimum amount of $1,000,000 combined single limit per oc currence for bodily injury and property damage.

c. Comprehensive or Commer cial General Liability Insurance coverage in the minimum amount of $1,000,000 combined single limit, including coverage for:

(1) bodily injury
(2) personal injury
(3) broad form property damage
(4) contractual liability
(5) cross-liability
(6) products and completed operations liability

4. Other Insurance Provisions.

If any insurance coverage requ ired in this Agreement is provided on a “Claims Made” rather than “Occurrence” form, CONTRACTOR agrees to maintain the req uired coverage for a period of three (3) years after the expiration of this Agreement (hereinafter “post agreement coverage”) and any extensions thereof. CONTRACTOR may maintain the required pos t agreement coverage by renewal or purchase of prior acts or tail coverage. This provisi on is co ntingent upon post agreem ent coverage being both available and reasonably affordable in relation t o the coverage provided during the term of this Agreement. F or purposes of interpreting this requirement, a cost not exce eding 100% of the last annua l policy premium during the term of this Agreement in order to purchase prior acts or tail coverage for po st agreement coverage shall be deemed to be reasonable.

5. Endorsements.

All required Automobile and Com prehensive or Com mercial General Liability In surance shall be endorsed to contain the following clauses:

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a. The City of Visalia, its officers, agents, em ployees, representatives, and volunteers are added as additio nal insureds as respects operations and acti vities of, or on behalf of the named insured, performed under contract with the City of Visalia.

b. It is agreed that any insurance maintained by the Cit y of Visalia shall apply in excess of and not contribute with insurance provided by this policy.

c. This insurance shall not be canceled, limited in sco pe or co verage, or non -renewed until after thirty (30) days prior written notice has been given to the Cit y Clerk, City of Visalia, 707 W. Acequia, Visalia, CA, 93291

6. Proof of Coverage.

CONTRACTOR agrees to provide its insur ance broke r(s) with a full c opy of t hese insurance provisions and provide CITY on or before the effective date of this Agreement with Certificate(s) of Insurance for all required coverages. Copi es of all the required Endorsements shall be attached to the Certificate(s) of Insurance or other evidence of insurance acceptable to the City of Visalia, which shall be provided by CONTRACTOR’s insurance company as evidence of the stipulated coverages. T his Proof of Coverage shall then be mailed t o the City of Visalia at th e following address:

City of Visalia
707 W. Acequia
Visalia, CA 93291
Attn: Purchasing Division

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Visalia City Council
Staff Report
Visalia City Council
707 W. Acequia
Visalia, CA 93291
File #: 23-0175 Agenda Date: 5/15/2023 Agenda #: 7.

Agenda Item Wording:

Second reading and adoption of Ordinance No. 2023-02, a request by the City of Visalia to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an agricultural preservation ordinance to implement Visalia General Plan Land Use Policy LU-P-34. The project applies citywide to properties within the Urban Growth Boundary Tiers II and III established by the Visalia General Plan. A Notice of Exemption was prepared for the new ordinance in accordance with State California Environmental Quality Act (CEQA) Guidelines Section 15183 (Public Resources Code §21083.3). Notice of Exemption No. 2023-23 disclosed that the Agricultural Land Preservation ordinance will have no additional environmental review based upon the ordinance implementing General Plan Land Use Policy LU-P-34, uniformly on development projects that convert prime farmland and farmland of statewide importance in Urban Growth Boundary Tier II and Tier III.

Deadline for Action: 5/15/2023
Submitting Department: Community Development
Contact Name and Phone Number:

Paul Bernal, Community Development Director, [email protected] <mailto:[email protected]>, (559) 713-4025
Department Recommendation:

Staff recommends that the Visalia City Council conduct the second reading and adopt Ordinance No. 2023-02, a request by the City of Visalia to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an Agricultural Preservation Ordinance to implement Visalia General Plan Land Use Policy LU-P-34.

Summary:

On May 1, 2023, the City Council held a public hearing to introduce Ordinance No.2023-02, a request to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an Agricultural Preservation Ordinance (APO) to implement Visalia General Plan Land Use Policy LU-P-

34. During the public hearing, the City Council received a staff report, staff presentation on changes made to the APO based on direction and public comment. After the item was presented and public comments received, the City Council voted 4-0, Vice Mayor Taylor recused, to introduce and adopted Ordinance No. 2023-02, subject to two revisions to the ordinance.

Background Discussion:

On February 24, 2023, the draft APO was publicly advertised and posted for a 32-day public review.

During the public review of the draft APO, the consultant and staff provided the City Council with a Visalia City Council Printed on 5/12/2023Page 1 of 4
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During the public review of the draft APO, the consultant and staff provided the City Council with a detailed overview of the draft APO at the March 6, 2023 Work Session that highlighted key aspects of the APO including: processes for securement of easements; in-lieu fee assessments, process, and remittance; and, monitoring and compliance. During the 32-day public review period, staff received several correspondence e-mails and letters from individuals related to the daft APO. Based on the comments provided by the City Council and the public, the final APO was included as Attachment “A” of Ordinance No. 2023-02 for the City Council’s consideration and adoption.

City Council Public Hearing:

On May 1, 2023, the City Council held a public hearing to introduce Ordinance No.2023-02, a request to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an Agricultural Preservation Ordinance (APO) to implement Visalia General Plan Land Use Policy LU-P-

34. During the public hearing, the City Council received a staff report and staff presentation on key revisions made to the APO based on direction and public comments received during the 32-day public review of the draft APO. Some of the key revisions presented included updating the affordable housing language to include “comply with State Density Bonus Law”, inclusion of language for “agriculturalland mitigation bank”to offset their conversion of agricultural lands, removal of language that required additional steps to demonstrate that there is no land available within the 10-mile radius and allowing in-lieu fees to be used within the five-county region. In addition, several members provided additional comments in support of the APO, but also requested that some revisions to portions of the APO be revised.

Upon closing the public hearing, the City Council discussed the APO and identified two items for revision. The first item was modifying the definition of “Roadways”to include local roads dedicated for public use. The second item was revising the 5 acre project size exemption to 20 acres as stated in Section 18.04.060.B.2. The City Council introduced and adopted Ordinance No. 2023-02, subject to the two revisions as noted by a 4-0 vote. The revised APO is included as Attachment “A”to Ordinance No. 2023-02.

Fiscal Impact:

On September 19, 2022, the City Council authorized the City Manager to award a contract to Provost & Pritchard Consulting Group of Visalia, CA for the preparation of Agricultural Preservation Ordinance in amount of not to exceed $150,000. Staff is also seeking if the allocated SB 2 Planning Grant monies can be used for the preparation of this ordinance.

Prior Council Action:
· On May 1, 2023, the City Council held a public hearing to introduce Ordinance No.2023-02.

The City Council voted 4-0, Vice Mayor Taylor recused, to introduce and adopted Ordinance Visalia City Council Printed on 5/12/2023Page 2 of 4
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No. 2023-02.
· On March 6, 2023, the City Council received a presentation and update on the release of the draft APO. During the Work Session presentation, the consultant and staff provided an overview of the ordinance and received input from the City Council and community on the content of the draft ordinance.
· On December 5, 2022, the City Council received a presentation and provided direction regarding a series of options for the City Council’sconsideration ahead of a future adoption of an APO to implement General Plan Land Use Policy LU-P-34. · On August 18, 2022, the City Council adopted Resolution No. 2022-50 which rescinded the adoption of Resolution No. 2021-44, which approved General Plan Amendment No. 2021-01, a request by the City of Visalia to amend language to General Plan Land Use Policy LU-P-34 by removing the requirement to establish an Agricultural Mitigation Program (AMP) for properties converting prime farmland and farmland of statewide importance within Growth Tiers II and III. The adoption of the resolution to rescind the adoption of Resolution No. 2021- 44 was based on the ruling of the Superior Court of the State of California, County of Tulare, which invalidated the City of Visalia’sapproval to General Plan Amendment (GPA) No. 2021- 01 and the related certification of an addendum to a previously certified environmental impact report (EIR).

Other:

None.

Alternatives:

City Council can choose to not conduct the second reading of the ordinances update.

Recommended Motion (and Alternative Motions if expected):

I move to approve the second reading and adopt Ordinance No. 2023-02, approving a request by the City of Visalia to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an agricultural preservation ordinance to implement Visalia General Plan Land Use Policy LU-P-34.

Environmental Assessment Status:

A Notice of Exemption was prepared for the APO in accordance with State California Environmental Quality Act (CEQA) Guidelines Section 15183(g)(7) (Public Resources Code §21083.3). Notice of Exemption No. 2023-23 disclosed that the APO requires no additional environmental review based upon the ordinance implementing General Plan Land Use Policy LU-P-34 and that the APO will be uniformly on development projects that convert prime farmland or farmland of statewide importance in Urban Growth Boundary Tier II and Tier III.

CEQA Review:

Notice of Exemption No. 2023-23 was prepared for Ordinance No. 2023-02 in in accordance with State California Environmental Quality Act (CEQA) Guidelines Section 15183(g)(7) (Public Visalia City Council Printed on 5/12/2023Page 3 of 4
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State California Environmental Quality Act (CEQA) Guidelines Section 15183(g)(7) (Public Resources Code §21083.3).

Attachments:

1. Ordinance No. 2023-02 - Agricultural Preservation Ordinance - Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”.

2. City Council Introduction and First Reading Staff Report from May 1, 2023.

Visalia City Council Printed on 5/12/2023Page 4 of 4
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Ordinance No. 2023-02
ORDINANCE NO. 2023-02

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VISALIA ADOPTING ORDINANCE NO. 2023-02, A REQUEST BY THE CITY OF VISALIA TO

ADOPT A NEW TITLE AND CHAPTER TO THE VISALIA MUNICIPAL CODE REFERRED TO AS TITLE 18 “AGRICULTURAL LAND PRESERVATION”, CHAPTER 18.04 “AGRICULTURAL LAND PRESERVATION PROGRAM”, TO

CREATE AN AGRICULTURAL PRESERVATION ORDINANCE TO IMPLEMENT VISALIA GENERAL PLAN LAND USE POLICY LU-P-34. THE PROJECT APPLIES

CITYWIDE TO PROPERTIES WITHIN THE URBAN GROWTH BOUNDARY TIERS II AND III ESTABLISHED BY THE VISALIA GENERAL PLAN.

WHEREAS, Ordinance No. 2023-02 is a request by the City of Visalia to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an agricultural preservation ordinan ce to implement Visalia General Plan Land Use Policy LU -P-34. The project applies citywide to properties within the Urban Growth Boundary Tiers II and III established by the Visalia General Plan; and

WHEREAS, on September 19, 2022, the preparation of an A gricultural Preservation Ordinance was initiated in response to direction provided by the City Council to begin the preparation of an A gricultural Preservation Ordinance to fulfill General Plan Land Use Element Policy LU -P-34, created during the General Pl an Update process in 2014 to assist with mitigating the impacts of the loss of farmland as a result of land use development under the General Plan; and

WHEREAS, the City Council of the City of Visalia on December 5, 2022, received a presentation and prov ided direction regarding a series of options for the City Council’s consideration ahead of a future adoption of an A gricultural Preservation Ordinance to implement the City’s Agricultural Mitigation Program as outlined in General Plan Land Use Policy LU-P-34; and

WHEREAS, on February 24, 2023, the Draft A gricultural Preservation Ordinance was publicly advertised for review on the City’s A gricultural Preservation Ordinance website for a 32-day public comment review period; and

WHEREAS, on March 23, 2023, the City Council received a presentation and update on the release of the Draft Agricultural Preservation Ordinance and received input from the community on the content of the draft ordinance; and

WHEREAS, the City Council of the City of Visalia, after d uly published notice, held a public hearing before said Council on May 1, 2023; and 211
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WHEREAS, the project is exempt under the California Environmental Quality Act (CEQA) Section 15183 (Public Resources Code §21083.3).

NOW, THEREFORE, BE IT RESOLVED the City Council concurs that the project is exempt from further environmental review under the California Environmental Quality Act (CEQA) Guidelines Section 15183 (Public Resources Code §21083.3) and Notice of Exemption No. 2023-23 disclosed that the Agricultural Land Preservation ordinance will have no additional environmental review based upon the ordinance implementing General Plan Land Use Policy LU -P-34, uniformly on development projects that convert prime farmland and farmland of statewide importance in Urban Growth Boundary Tier II and Tier III.

NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Visalia approves Ordinance No. 2023 -02, as shown on Attachment “A” of this Ordinance, based on the following specific findings and evidence presented:

1. That the ordinance is consistent with the Visalia General Plan as the provisions of Title 18 Agricultural Land Preservation, Chapter 18.04 Agricultural Land Preservation Program are established to implement the go als of the City of Visalia General Plan and address the conversion of prime farmland and farmland of statewide importance through the adoption of an agricultural land preservation program. The intent of the agricultural land preservation program is to esta blish a process for the required preservation of agricultural land through the acquisition of agricultural conservation easements or the payment of an in -lieu fee for projects subject to the provisions of this chapter.

2. That the project is exempt from fu rther review under the California Environmental Quality Act (CEQA) Guidelines section 15061(b)(3) (common sense exemption), as the proposed master plan boundary expansion, change in land use designation, and change in zoning classification will not in and of themselves have an effect on the environment.
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ATTACHMENT “A”

AN ORDINANCE OF THE CITY COUNCIL ADOPTING A NEW TITLE

AND CHAPTER TO THE VISALIA MUNICIPAL CODE REFERRED TO
AS TITLE 18 “AGRICULTURAL LAND PRESERVATION”, CHAPTER

18.04 “AGRICULTURAL LAND PRESERVATION PROGRAM” AS

FOLLOWS

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VISALIA:

Section 1: Enact Title 18 (Agricultural Land Preservation) of the Visalia Municipal Code:
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Visalia Municipal Code
Title 18. Agricultural Land Preservation
Chapter 18.04. Agricultural Land Preservation Program
Article 1. General Provisions
Section 18.04.010 Title
This chapter may be cited as the “Agricultural Land Preservation Program” of the City of Visalia.

Section 18.04.020 Purpose and Intent
A. The provisions of this chapter are established to implement the goals of the City of Visalia General Plan and address the conversion of prime farmland and farmland of statewide importance through the adoption of an agricultural land preservation program.

The intent of the agricultural land preservation program is to establish a process for the required preservation of agricultural land through the acquisition of agricultural conservation easements or the payment of an in-lieu fee for projects subject to the provisions of this chapter.

B. The provisions of this chapter shall only apply to the extent that their application would not violate the constitution or laws of the United States, or of the State of California. The City of Visalia shall apply the chapter to avoid such unconstitutionality or illegality.

C. Nothing in this chapter shall be construed to abridge or narrow the City of Visalia's police powers. The City Council retains its full power and discretion in its ability to deny a proposed conversion on the basis that the proposed conversion is inconsistent with the public health, safety, or welfare because of the loss of agricultural land or otherwise, which the City is tasked with safeguarding.

Section 18.04.030 Objectives
The objectives of this chapter are to:

A. Protect agricultural land as a component of the regional economy in the southern San Joaquin Valley, including the City of Visalia.

B. Preserve agricultural lands from the effects of urban encroachment.

C. Balance the need for agricultural land conservation with other public goals for the City of Visalia, including the need for housing, commercial, industrial, and infrastructure development.
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Section 18.04.040 Interpretation of Provisions
A. Authority to Interpret. Where uncertainty exists regarding the interpretation of any provision of this chapter or its application to a specific site, the Community Development Director (“Director”) shall have the authority and responsibility to interpret such terms, provisions, and requirements.

B. Record of Interpretation. Code interpretations shall be made in writing and shall state the facts upon which the Director relied to make the determination. The Community Development Department shall keep a record of interpretations made pursuant to this chapter on file for future reference.

C. Applicability of Interpretation. Code interpretations shall be applied in all future cases, provided that any interpretation may be superseded by a later interpretation when the Director determines that the earlier interpretation was in error or no longer applicable under the current circumstances.

D. Right to Appeal. A code interpretation by the Community Development Director may be appealed to the City Council. The following procedure shall apply.

1. The applicant or any interested person adversely affected may, upon payment of an appeal fee as may be established by resolution of the Council, appeal any interpretation of the Community Development Director by filing a notice thereof in writing with the city clerk, setting forth in detail the interpretation and the grounds upon which the appeal is based within ten (10) days after the interpretation that is the subject of the appeal. Such notice shall state specifically where it is claimed there was an error or abuse of discretion by the Director.

2. Upon the filing of an appeal, the City Council shall set the matter for hearing.

Such hearings shall be held within thirty (30) days after the date of filing the appeal.

3. In holding the hearing on the matter, the Council may receive any and all information pertinent to the matter. Upon the close of the hearing, the Council shall vote to either confirm the decision of the Community Development Director, overturn the interpretation, or confirm the interpretation with modifications, and the Council may continue the item to the next meeting if necessary to direct staff to prepare a conforming resolution with findings, which shall be considered by the Council at the next scheduled Council meeting. In the case of a tie vote, the Community Development Director interpretation shall stand, and shall be considered final as of the date of the Council vote.

Section 18.04.050 Definitions
For the purpose of this chapter, the following definitions shall apply, except where the context of this chapter otherwise expressly requires. The definition of a word or phrase shall apply to any variants of the word or phrase.
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“Affordable housing” means housing with an affordable housing cost, as defined in Health and Safety Code Section 50052.5, or affordable rent, as defined in Health and Safety Code Section 50053, for households whose gross income does not exceed 120 percent of the area median income.
“Agricultural buffers” mean areas of permanent vegetation between agricultural land and urban development.
“Agricultural conservation easement” means a conservation easement executed pursuant to Civil Code section 815, et seq. for purposes of agriculture.
“Agricultural processing uses” means operations that transform, package, sort, or grade livestock or livestock products, agricultural commodities, or plant or plant products into goods that are used for the intermediate or final consumption, including goods for nonfood use. “Conversion” means to develop land through construction or improvement of land associated with approval of a project such that the land may not be converted back to agricultural use. “Converted land” means the area of land that would be converted as a result of project approval, as calculated in section 18.04.070(A).
“Farmland of statewide importance” is a category of farmland defined by the California Department of Conservation for purposes of the Farmland Mapping and Monitoring Program (FMMP).
“In-lieu fee” means payment in-lieu of direct acquisition of an agricultural conservation easement.
“Preserved land” means that land to be encumbered by an agricultural conservation easement, as determined in section 18.04.070(A).
“Prime farmland” is a category of farmland defined by the California Department of Conservation for purposes of the Farmland Mapping and Monitoring Program (FMMP). “Project” means a development project requiring an approval action from the City of Visalia that would authorize the construction or operation of buildings or uses. For purposes of this chapter, project does not include annexation of land, redesignation of a planned land use, or rezone action as these actions alone do not authorize development.
“Public facility” means a facility owned or operated by a public, quasi-public, or private entity used for the production, storage, transmission, collection, or treatment of electricity, wastewater, stormwater, water, and refuse, or for the provision of general hospitals, public cemeteries, public schools or open space, including both public and private parks and trails. “Qualified entity” means an entity qualified and approved to hold agricultural conservation easements in compliance with section 18.04.100.
“Roadways” means freeways, arterials, collectors, and local roads dedicated for public use. 216
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“Southern San Joaquin Valley” means the portions of Madera, Fresno, Kings, Tulare, and Kern counties located within the San Joaquin Valley Air Pollution Control District boundaries. “Sphere of influence” means the ultimate service area of an incorporated city, as established by the applicable Local Agency Formation Commission.
“Tier II” means the Tier II Urban Development Boundary as defined in the Visalia General Plan. “Tier III” means the Tier III Urban Growth Boundary as defined in the Visalia General Plan.

Article 2. Program Requirements
Section 18.04.060 Applicability
A. Projects Subject to Program. Projects authorized by the City that would result in the conversion of prime farmland or farmland of statewide importance are subject to the provisions of this chapter, unless exempt in accordance with subsection 18.04.060(B) or excluded in accordance with subsection 18.04.060(C).

B. Exemptions. Projects subject to any of the following criteria are not subject to the provisions of this chapter.

1. Location. Projects, or portions thereof, located on lands that are not within the Tier II Urban Development Boundary or the Tier III Urban Growth Boundary.

2. Size. Projects of 20 acres or less in gross area. The City may disallow the use of this exemption if it finds that the subject property has been subdivided into 20- acre or smaller parcels in whole or in part to avoid the preserved land obligation in accordance with this chapter.

3. Prior Compliance. Projects on sites that have demonstrated compliance with the provisions of this chapter for affected acreage.

C. Exclusions. Projects consistent with any of the following criteria are not subject to the provisions of this chapter and shall be excluded from the preserved land obligation as outlined in section 18.04.070(A). Such exclusions may comprise the entire project area or may be a portion of the project area acreage. Only such portion of the project area that falls within any of the following categories shall be excluded.

1. Farmland Designation.
a. Acreage not designated as prime farmland or farmland of statewide importance on the most recent Farmland Mapping and Monitoring Program (FMMP) map published by the California Department of Conservation.
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b. Acreage that may be designated as prime farmland or farmland of statewide importance on the most recent Farmland Mapping and Monitoring Program (FMMP) map published by the California Department of Conservation but meets at least one of the following standards. Documents demonstrating compliance with one or both standards shall be submitted to the Director for evaluation and determination, which may include concurrence from the Department of Conservation.

1. Land Use. The land is not currently and has not been used for irrigated agricultural production for a minimum of four consecutive calendar years.

2. Soils. The soil type is not listed on the Soil Candidate Listing for Prime Farmland and Farmland of Statewide Importance for Tulare County, as maintained by the Department of Conservation for purposes of the FMMP.

2. Project Type or Use.
a. Affordable housing projects that comply with State Density Bonus Law. b. Agricultural processing uses.
c. Agricultural buffers.
d. Public facilities.
e. Roadways.

Section 18.04.070 Preservation Requirement
A. Determination of Preserved Land Obligation. The preserved land obligation shall be calculated at a ratio of one acre of preserved land for each acre of converted land.

Converted land acreage shall be calculated by determining the applicable project acreage less the acreage of exclusions.

B. Method of Preservation. The preserved land obligation, as established in section

18.04.070(A), shall be preserved through acquisition of an agricultural easement in accordance with section 18.04.080, unless eligible for payment of an in-lieu fee in accordance with section 18.04.090.

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Article 3. Methods of Preservation
Section 18.04.080 Acquisition of Agricultural Conservation Easement A. Easement Acquisition. The applicant shall convey, or arrange for the conveyance of, an area of land meeting its preserved land obligation to a qualified entity for execution of an agricultural conservation easement thereon. This shall include the conveyance of land within an agricultural land mitigation bank. Such land shall meet all requirements for an agricultural conservation easement in accordance with this chapter.

B. Eligibility of Land for Easement. The preserved land shall meet all of the following requirements to be eligible for placement in an agricultural conservation easement.

1. The preserved land shall be located in the southern San Joaquin Valley, with preference afforded to preserved land located within 10 miles of the City limits.

The preserved land must be located outside any city’s limits and sphere of influence.

2. The preserved land shall be designated as prime farmland or farmland of statewide importance on the most recent published FMMP map.

3. The preserved land shall be a minimum of 20 contiguous acres in size.

4. The preserved land shall be zoned and planned for agricultural uses consistent with the purposes of an agricultural conservation easement.

5. The preserved land shall have at least one verified source of water.

6. The preserved land shall not be encumbered by any use or structure that would be incompatible with the purpose of the agricultural conservation easement. Such uses shall be deducted from the total acreage being preserved.

C. Terms of Easement. The agricultural conservation easement shall be consistent with the purpose and intent of this chapter and shall include, at a minimum, the following terms.

1. The agricultural conservation easement prohibits all residential, commercial, or industrial development and any other land uses or activities that substantially impair or diminish the agricultural productive capacity of the preserved land or that are otherwise inconsistent with the conservation purposes of this chapter.

2. The agricultural conservation easement prohibits the landowner from entering into any additional easement, servitude, or other encumbrance that could prevent or impair the potential agricultural use of the preserved land. 219
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3. The agricultural conservation easement limits the construction of structures to those designed to facilitate agricultural use of the property, except that this division shall not prohibit replacement of an existing home that was present at the time the easement was established so long as the replacement of the home does not prevent the agricultural use of the property. Secondary dwelling units or farmworker housing may also be permitted, so long as the primary use of the property is agricultural.

4. The preserved land to be subject to the agricultural conservation easement will be either obtained from a willing seller or voluntarily conveyed by the applicant.

5. Any existing financial liens or financial encumbrances on the preserved land shall be subordinated to the agricultural conservation easement.

6. The agricultural conservation easement shall be approved by the qualified entity that will hold the easement and executed by all parties with an interest in the preserved land.

7. The agricultural conservation easement is in recordable form and contains an accurate legal description of the preserved land.

8. The agricultural conservation easement names the qualified entity as an intended beneficiary and authorizes it to enforce all terms of the easement.

9. The agricultural conservation easement recites that it is intended to satisfy the preserved land obligation imposed by this chapter and that it is subject to the requirements set forth in this chapter.

10. The agricultural conservation easement provides that if the qualified entity holding the easement ceases to exist, ownership of the easement shall pass to another qualified entity.

11. The agricultural conservation easement has been approved as to form by the City of Visalia, in accordance with section 18.04.080(D).

D. Approval of Easement. The City Council shall approve the form and content of all agricultural conservation easements to ensure consistency with this chapter.

1. Should the easement be consistent with a form previously approved by the City Council, the City Council may designate an authorized party to review and confirm consistency of subsequent easements prior to execution by third parties without further approval by the City Council.

2. Should the easement deviate from a form approved by the City Council, the City Council shall review and approve proposed amendments prior to execution by third parties.
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E. Holder of Easement. All agricultural conservation easements acquired for purposes of this chapter shall be held by a qualified entity, as determined in section 18.04.100.

Section 18.04.090 Payment of In-Lieu Fee
A. Eligibility of In-Lieu Fee Payment. To be eligible for payment of an in-lieu fee to satisfy the preserved land obligation, either of the following standards must be met.

1. The total preserved land obligation is less than 20 acres.

2. If the total preserved land obligation is 20 acres or more, the applicant must demonstrate at least one of the following to the satisfaction of the City:
a. No qualified entity exists;
b. The applicant has met with all qualified entities and all such entities are unable or unwilling to assist with the acquisition of an agricultural conservation easement, as certified in writing to the City; or c. Working with a qualified entity, the applicant has made at least one good faith offer to purchase an agricultural conservation easement, but any and all such offers have been declined by the potential seller, as certified in writing to the City.

B. Determination of Fee. The in-lieu fee shall be determined on a case-by-case basis and include the following components. The applicant shall determine the amount of the in- lieu fee with supporting documentation from at least one qualified entity.

1. The purchase price of an agricultural conservation easement, which shall equal 35 percent of the average price per acre of three comparable lands, as confirmed through submittal of an appraisal report prepared by a licensed appraiser with experience in agricultural land appraisal. The appraisal shall be based on the highest and best use of the land without an agricultural conservation easement.

The price per acre shall be adjusted for inflation based on an estimate of the time required to acquire the agricultural conservation easement following payment of the in-lieu fee. The price per acre shall be multiplied by the preserved land obligation to determine this component of the in-lieu fee.

2. All transaction costs associated with the acquisition of the agricultural conservation easement, which may include anticipated due diligence and administrative costs.

3. An amount sufficient to establish an endowment for the cost of monitoring, administering, and enforcing the agricultural easement in perpetuity.

4. A reasonable amount to cover additional contingencies. 221
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5. In no event shall the in-lieu fee established pursuant to this section exceed a reasonable estimate of the total of:
a. The cost of acquiring and managing the agricultural conservation easement that the applicant would otherwise be required to create to satisfy its preserved land obligation under this chapter; and b. The cost of administering the in-lieu fee.

C. Fee Approval and Remittance. City Council shall approve the amount of the in-lieu fee established under section 18.04.090(B). Approval shall occur prior to remittance of the in-lieu fee directly from the applicant to the qualified entity.

D. Use of Fee. In-lieu fees collected shall be used solely for the acquisition, administration, monitoring, and enforcement of agricultural conservation easements in accordance with this chapter and such easements shall be located within the Southern San Joaquin Valley.

E. Reporting Requirements. The annual report required in section 18.04.100(D) shall include an accounting of the use and status of all in-lieu fees collected in accordance with this program.

Article 4. Monitoring and Compliance
Section 18.04.100 Qualified Entity
A. Requirements. To be considered a qualified entity for purposes of holding agricultural conservation easements in accordance with this chapter, an entity must be a nonprofit public benefit corporation, operating within the state of California, that is qualified to hold conservation easements under California Civil Code section 815.3 and be approved by the City Council for the purpose of holding and managing agricultural conservation easements in accordance with section 18.04.100(B).

B. Approval Process. In considering whether to approve an entity as a qualified entity for purposes of this chapter, the City Council shall consider the following criteria.

1. Whether the entity's principal purpose includes holding and administering easements for conserving and maintaining lands in agricultural production;

2. The extent and duration of the entity's involvement in agricultural land conservation within the southern San Joaquin Valley;

3. Whether the entity has been accredited by the Land Trust Accreditation Commission;

4. Whether the entity is a member in good standing of an established and widely recognized national or statewide association of land trusts; and 222
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5. Whether the entity’s easement template is consistent with the terms of this chapter.

6. Any other information or requirements the City finds relevant under given circumstances.

C. Duties.

1. The qualified entity shall monitor the use of all preserved land subject to agricultural conservation easements held by the entity and enforce compliance with the terms of those agricultural conservation easements.

2. If a qualified entity intends or reasonably expects to cease operations, it shall assign any agricultural conservation easements it holds to another qualified entity.

D. Monitoring and Reporting. The qualified entity shall submit a report to the City on or before February 1 of each year, describing the activities undertaken by the entity under this chapter for the previous calendar year. The report shall describe the status of the agricultural conservation easements for purposes of satisfying the preserved land obligations under this chapter held by the entity, including all costs associated with acquisition of agricultural conservation easements acquired in accordance with this chapter, a summary of all actions taken to enforce its agricultural conservation easements acquired in accordance with this chapter, and an accounting of the amount and use of administrative and in-lieu fees remitted to it by applicants. Confirmation of the accreditation status of the qualified entity shall also be reported. The report shall also include any other applicable reporting requirements as specified by this chapter.

Section 18.04.110 Compliance Review
A. All preservation methods proposed by an applicant to comply with this chapter shall be reviewed by the Community Development Director for consistency with the terms and purposes of this chapter, except as expressly stated otherwise.

1. The City of Visalia shall not issue any permit directly authorizing or resulting in disturbance to the converted land acreage until the preserved land obligation is satisfied in accordance with this chapter. The preserved land obligation shall be satisfied when:
a. The approved agricultural conservation easement has been recorded; or b. When the applicant has remitted the approved in-lieu fee to the qualified entity.

B. If a court issues a judgement declaring that the purposes of this chapter and of an agricultural conservation easement can no longer be fulfilled by enforcement of that easement, the qualified entity holding that easement may extinguish the easement by selling it to the fee owner of the preserved land, if the following requirements are met:
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1. Either the action was not contested and the judgement was entered pursuant to stipulation, or the City of Visalia was a party to the action and stipulated to the judgement; and

2. The qualified entity shall use the proceeds of sale to acquire an agricultural conservation easement in other preserved land in compliance with this chapter.

Section 18.04.120 Severability
If any portion of this chapter is held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter. The City Council declares that it would have enacted this chapter and each section, division, paragraph, sentence, clause, or phrase thereof even if a portion of the chapter were declared unconstitutional. 224
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Section 2: Severability . If any section, subsection, subdivision, paragraph, sentence, cla use or phrase of th is Ordinance, or its application to any person or circumstances, is or any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not effect the validity or enforceability of the remaining sections, subsections, subdivision, paragraphs, sentences, clauses or phrases of these Ordinances, or its application to any other person or circumstance. The City Council of the City of Visalia hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

Section 3: Construction . The City Council intends these Ordinances to supplement, not to duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in light of that intent.

Section 4: Effective Date . These Ordinances shall take effect thirty days after its adoption.

Section 5: Certification . The City Clerk shall certify the passage and adoption of this Ordinance and shall cause the same to be published or posted according to law. 225
Agenda Item Wording:
..title
A Public Hearing and First Reading of Ordinance No. 2023- 02, a request by the City of Visalia to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an agricultural preservation ordinance to implement Visalia General Plan Land Use Policy LU-P-34. The project applies citywide to properties within the Urban Growth Boundary T iers II and III established by the Visalia General Plan. A Notice of Exemption was prepared for the new ordinance in accordance with State California Environmental Quality Act (CEQA) Guidelines Section 15183 (Public Resources Code §21083.3). Notice of Exem ption No. 2023- 23 disclosed that the Agricultural Land Preservation ordinance will have no additional environmental review based upon the ordinance implementing General Plan Land Use Policy LU -P-34, uniformly on development projects that convert prime farmland and farmland of statewide importance in Urban Growth Boundary Tier II and Tier III.
..body

Deadline for Action: 5/1/2023

Submitting Department: Community Development

Contact Name and Phone Number:

Paul Bernal, Community Development Director, [email protected] , (559) 713-4025

Department Recommendation:

Staff recommends that the Visalia City Council hold a public hearing, receive a presentation and staff report, and i ntroduce the first reading of Ordinance No. 2023- 02, approving a request by the City of Visalia to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultur al Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an Agricultural Preservation Ordinance to implement Visalia General Plan Land Use Policy LU-P-34.

Summary:

The City Council directed staff to prepare an agricultur al preservation ordinance to implement General Plan Policy LU -P-34, which required the establishment of an Agricultural Mitigation Program. The adoption of the Agricultural Land Preservation Ordinance (APO) is a necessary step for projects in the Tier II and Tier III growth boundaries to move forward. Based on direction received from the City Council at their March 6, 2023 and December 5, 2022 Work Sessions staff, along with the City’s consultant, prepared a draft APO that was posted for a 32- day public review period and has finalized the APO for the City Council’s review and adoption.

Overview and Changes to Agricultural Land Preservation Ordinance:

On February 24, 2023, the draft APO was publicly advertised and posted for a 32- day public review. During the public review of the draft APO, the consultant and staff provided 226
the City Council with a detailed overview of the draft APO at the March 6, 2023 Work Session that highlighted key aspects of the APO including: processes for securement of easements; in- lieu fee assessments, process, and remittance; and, monitoring and compliance. During the 32- day public review period, staff received several correspondence e-mails and letters from individuals related to the daft APO. A copy of all correspondence items received is attached as Exhibit “B” to this staff report. Based on the comments provided by the City Council and the public, the final APO is included as Attachment “A” of Ordinance No. 2023- 02 for the City Council’s consideration and adoption.

The following are key highlights of the final APO, including a brief overview of revisions made to the draft APO based on comments received:

Articles 1 General Provisions : Title, Purpose and Intent, Objectives, Interpretation of Provisions, Definitions
Article 1 contains the purpose of the APO, which is to establish a process for the required preservation of agricultural land through the acquisition of agricultural conservation easements or the payment of an in- lieu fee for development projects. The interpretation section establishes a procedure to address and record interpretations made by the Community Development Director in the implementation of the APO, and also establishes a procedure for code interpretations by the Community Development Director to be appealed to the City Council as defined in Section 18.04.040.D.

One key revision to this section is an update to the “public facility” definition to also include general hospitals and public cemeteries.

Article 2 Program Requirements: Applicability, Preservation Requirement Article 2 outlines which projects are subject to the APO (i.e., development projects that would result in the conversion of prime f armland or farmland of statewide importance), but also identifies which projects would be exempt or excluded. Only one key change to note in this article is found under Section 18.04.060.C.2 “Exclusions, Project Type or Use”. Based on comments received, the “affordable housing project” language was updated to include the following language “comply with State Density Bonus Law”.

In addition, the final APO still retains the exemption provision for projects of five acres or less in gross area as being exempt from the APO provisions. Although comments received requested a revision to this section seeking to have the exemption increased to 20 acres to align with the threshold for easement acquisitions, s taff retained the 5- acre provision based on staff’s assessm ent that under the California Environmental Quality Act (CEQA) projects of five acres or less can be exempt from any further CEQA review based on the Class 32 In- fill exemption. Projects greater than 5 acres and up to a maximum of 20 acres would be afforded the option of using the in-lieu fee provision of the ordinance and/or demonstrate compliance with the APO through participation in a “agricultural land mitigation bank” which is addressed in the staff report under the Article 3 discussion below.
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Furthermore, the APO retains the “roadways” exclusion as including major roadways as addressed in the Visalia General Plan. The General Plan identifies major roadways as Freeways, Arterials, and Collectors, which are designed to carry significant traffic volumes through the future growth areas of the entire Visalia planning area. Local streets, which were requested to be included as an “exclusion” to the APO requirements as noted in public comment letters received, are not included as these roads are built to serve the proposed development within each of the land use areas.

Article 3 Methods of Preservation: Acquisition of Agricultural Conservation Easement, Payment of In-Lieu Fee
Article 3 covers the two methods of preservation, acquisition of conservation easements, which is the preferred method, and the in- lieu fee method. One revision includes the addition of language based on comments received regarding the ability to demonstrate compliance with the APO through use of an “agricultural land m itigation bank”. Use of a land mitigation bank would allow a developer to secure easements within a land mitigation bank to offset their conversion of agricultural lands. Such lands within the mitigation bank are required to meet the same standards of land eligible for agricultural conservation easements, such as location and zoning of the land. However, this additional method of securing easements and/or paying into the land mitigation bank to secure the necessary acreage for the conversion of agricultural land will provide additional flexibility for project proponents to demonstrate compliance with the APO.

Furthermore, the APO language has also been revised to clarify that easements can be obtained within the southern San Joaquin Valley five-county region without first requiring that the project proponent they demonstrate that they have met with qualified entity and the entity is unable to assist with the acquisition of an easement within 10 miles of the City limits. The preference language for easements t o be located within the 10- mile radius; however, the additional steps to demonstrate that there is no land available within the 10-mile radius has been removed.

Other provisions of this article include a requirement that conserved land shall be a minimum of 20 contiguous acres in size, shall be zoned and planned for agricultural uses and shall have at least one verified water source. This requirement does not preclude a land trust from requiring more than one source of water through their own due diligence process.

The APO also includes provisions in the event an easement cannot be obtained. Pursuant to Section 18.04.090 of the ordinance, a project proponent may pay an “in-lieu” fee as an alternative to purchasing a conservation easement when certain conditions are met. The in-lieu fee section was amended to be consistent with the easement language as noted in Section 18.04.080 by removing the requirement that limited the use of the in-lieu fee to only Tulare County. The revision, as noted in Section 18.04.090.D, allows the use of the in-lieu fee collected to be used for the acquisition, administration, monitoring, and enforcement of agricultural conservation easements and such easements shall be located within the Southern San Joaquin Valley (i.e., the defined five-county region). 228
The in- lieu fee will be determined on a case- by-case basis, as this provision has not changed and shall include:
• Purchase price = 35% of the average purchase price per acre of three comparable lands, confirmed through an appraisal report prepared by a licensed appraiser with experience in agricultural land appraisal. The appraisal shall be based on the highest and best use of the land without an agricultural conservation easement (this is consistent with other ordinances established t hat require an in- lieu fee calculation on a case-by-case basis).
• Transaction costs = closing costs, due diligence, administrative costs. • Endowment cost = establishment of an endowment for ongoing monitoring, administration, enforcement.
• A reasonable amount to cover additional contingencies.

The in-lieu fee section also requires the City Council to approve the amount of the fee, and payment of the fee will be directly from the project proponent to the qualified entity.

Approval shall occur prior to remittance of the in-lieu fee directly from the applicant to the qualified entity.

Article 4 Monitoring and Compliance: Qualified Entity, Compliance Review, Severability Article 4 addresses qualified entities, and identifies qualifications for entities to be considered including: the entity must be a nonprofit public benefit corporation operating within the state of California; the entity is qualified to hold conservation easements under California Civil Code section 815.3.; and, the entity must be approved by the City Council for the purpose of holding and managing agricultural conservation easements in accordance with the APO. In addition, monitoring and reporting by approved qualified entities is required annually. Such reporting shall be submitted to the City by February 1 st.

The overall language included in this section remains unchanged with the exception to Section 18.04.110.A.1.b, Compliance Review. This section states that the City of Visalia shall not issue any permit directly authorizing or resulting in disturbance to the converted land acreage until the preserved land obligation is satisfied. The preserved land obligation shall be satisfied when, a. The approved agricultural conservation easement has been recorded, or b. When the applicant has remitted the approved in- lieu fee to the qualified entity.

Public Comments Received:

During the 32-day public review comment period for the draft APO, staff received several items of correspondence regarding the draft APO. All comments, e- mails, and letters received are included as attachment Exhibit “B”.

Next Steps:

Staff will place the second reading of Ordinance No. 2023- 02 on the City Council’s next available meeting if the City Council adopts the first reading of Ordinance No. 2023- 02.

The ordinance will go into effect 30 days from the second reading. 229
In the interim, if the ordinance is adopted, City staff will continue to process projects in the Urban Growth Boundary Tier II for those land uses eligible, and the Tier III boundary for industrial land, that were placed on hold as result of the City needi ng to adopt an agricultural preservation ordinance to address the conversion of prime farmland and farmland of statewide importance in Tier II and Tier III. Staff anticipates in the next few months to begin processing several new residential projects through the public hearing process that will incorporate the adopted APO into their conditions of approval, as applicable, to demonstrate compliance with Land Use Policy LU-P-34.

Fiscal Impact:

On September 19, 2022, the City Council authorized the City Manager to award a contract to Provost & Pritchard Consulting Group of Visalia, CA for the preparation of Agricultural Preservation Ordinance in amount of not to exceed $150,000. Staff is also seeking if the allocated SB 2 Planning Grant monies can be used for the preparation of this ordinance.

Prior Council Action:
• On March 6, 2023, the City Council received a presentation and update on the release of the draft APO. During the Work Session presentation, the consultant and staff provided an overvi ew of the ordinance and received input from the City Council and community on the content of the draft ordinance. • On December 5, 2022, the City Council received a presentation and provided direction regarding a series of options for the City Council’s cons ideration ahead of a future adoption of an APO to implement General Plan Land Use Policy LU-P-

34. • On August 18, 2022, the City Council adopted Resolution No. 2022- 50 which rescinded the adoption of Resolution No. 2021- 44, which approved General Plan Amendment No. 2021-01, a request by the City of Visalia to amend language to General Plan Land Use Policy LU -P-34 by removing the requirement to establish an Agricultural Mitigation Program (AMP) for properties converting prime farmland and farmland of statewide importance within Growth Tiers II and III. The adoption of the resolution to rescind the adoption of Resolution No. 2021-44 was based on the ruling of the Superior Court of the State of California, County of Tulare, which invalidated the City of Visalia’s approval to General Plan Amendment (GPA) No. 2021-01 and the related certification of an addendum to a previously certified environmental impact report (EIR).

Other:

None.

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Alternatives:

The City Council may, in lieu of the recommended motion specified above, consider any of the following alternatives:

1. Refer all or parts of the project back to staff for further review; or

2. Continue the matter to a future City Council hearing for additional information.

Recommended Motion (and Alternative Motions if expected):
..recommendation
I move to introduce the first reading of Ordinance No. 2023- 02, approving a request by the City of Visalia to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an agricultural preservation ordinance to implement Visalia General Plan Land Use Policy LU-P-34.
..end
Environmental Assessment Status:

A Notice of Exemption was prepared for the APO in accordance with State California Environmental Quality Act (CEQA) Guidelines Section 15183(g)(7) (Public Resources Code §21083.3). Notice of Exemption No. 2023- 23 disclosed that the APO requires no additional environmental review based upon the ordinance implementing General Plan Land Use Policy LU -P-34 and that the APO will be uniformly on development projects that convert prime farmland or farmland of statewide importance in Urban Growth Boundary Tier II and Tier III.

CEQA Review:

Notice of Exemption No. 2023 -23 was prepared for Ordinance No. 2023- 02 in in accordance with State California Environmental Quality Act (CEQA) Guidelines Section 15183(g)(7) (Public Resources Code §21083.3).

Attachments:

1. Ordinance No. 2023-02 - Agricultural Preservation Ordinance – Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”.

2. Exhibit “B” – Public correspondence received.

3. PowerPoint Presentation

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Ordinance No. 2023-02
ORDINANCE NO. 2023-02

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VISALIA ADOPTING ORDINANCE NO. 2023-02, A REQUEST BY THE CITY OF VISALIA TO

ADOPT A NEW TITLE AND CHAPTER TO THE VISALIA MUNICIPAL CODE REFERRED TO AS TITLE 18 “AGRICULTURAL LAND PRESERVATION”, CHAPTER 18.04 “AGRICULTURAL LAND PRESERVATION PROGRAM”, TO

CREATE AN AGRICULTURAL PRESERVATION ORDINANCE TO IMPLEMENT VISALIA GENERAL PLAN LAND USE POLICY LU-P-34. THE PROJECT APPLIES

CITYWIDE TO PROPERTIES WITHIN THE URBAN GROWTH BOUNDARY TIERS II AND III ESTABLISHED BY THE VISALIA GENERAL PLAN.

WHEREAS, Ordinance No. 2023-02 is a request by the City of Visalia to adopt a new title and chapter to the Visalia Municipal Code referred to as Title 18 “Agricultural Land Preservation”, Chapter 18.04 “Agricultural Land Preservation Program”, to create an agricultural preservation ordinance to implement Visalia General Plan Land Use Policy LU- P-34. The project applies citywide to properties within the Urban Growth Boundary Tiers II and III established by the Visalia General Plan; and

WHEREAS, on September 19, 2022, the preparation of an A gricultural Preservation Ordinance was initiated in response to direction provided by the City Council to begin the preparation of an A gricultural Preservation Ordinance to fulfill General Plan Land Use Element Policy LU -P-34, created during the General Pl an Update process in 2014 to assist with mitigating the impacts of the loss of farmland as a result of land use development under the General Plan; and

WHEREAS, the City Council of the City of Visalia on December 5, 2022, received a presentation and provided direction regarding a series of options for the City Council’s consideration ahead of a future adoption of an A gricultural Preservation Ordinance to implement the City’s Agricultural Mitigation Program as outlined in General Plan Land Use Policy LU-P-34; and

WHEREAS, on February 24, 2023, the Draft A gricultural Preservation Ordinance was publicly advertised for review on the City’s A gricultural Preservation Ordinance website for a 32-day public comment review period; and

WHEREAS, on March 23, 2023, the City Council received a presentation and update on the release of the Draft Agricultural Preservation Ordinance and received input from the community on the content of the draft ordinance; and

WHEREAS, the City Council of the City of Visalia, after duly published notice, held a public hearing before said Council on May 1, 2023; and 232
Ordinance No. 2023-02

WHEREAS, the project is exempt under the California Environmental Quality Act (CEQA) Section 15183 (Public Resources Code §21083.3).

NOW, THEREFORE, BE IT RESOLVED the City Council concurs that the project is exempt from further environmental review under the California Environmental Quality Act (CEQA) Guidelines S ection 15183 (Public Resources Code §21083.3) and Notice of Exemption No. 2023-23 disclosed that the Agricultural Land Preservation ordinance will have no additional environmental review based upon the ordinance implementing General Plan Land Use Policy LU -P-34, uniformly on development projects that convert prime farmland and farmland of statewide importance in Urban Growth Boundary Tier II and Tier III.

NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Visalia approves Ordinance No. 2023- 02, as shown on Attachment “A” of this Ordinance, based on the following specific findings and evidence presented:

1. That the ordinance is consistent with the Visalia General Plan as the provisions of Title 18 Agricultural Land Preservation, Chapter 18.04 Agricultural Land Preservation Program are established to implement the go als of the City of Visalia General Plan and address the conversion of prime farmland and farmland of statewide importance through the adoption of an agricultural land preservation program. The intent of the agricultural land preservation program is to establish a process for the required preservation of agricultural land through the acquisition of agricultural conservation easements or the payment of an in- lieu fee for projects subject to the provisions of this chapter.

2. That the project is exempt from further review under the California Environmental Quality Act (CEQA) Guidelines section 15061(b)(3) (common sense exemption), as the proposed master plan boundary expansion, change in land use designation, and change in zoning classification will not in and of themselves have an effect on the environment.
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Ordinance No. 2023-02
ATTACHMENT “A”

AN ORDINANCE OF THE CITY COUNCIL ADOPTING A NEW TITLE

AND CHAPTER TO THE VISALIA MUNICIPAL CODE REFERRED TO
AS TITLE 18 “AGRICULTURAL LAND PRESERVATION”, CHAPTER

18.04 “AGRICULTURAL LAND PRESERVATION PROGRAM” AS

FOLLOWS

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VISALIA:

Section 1: Enact Title 18 (Agricultural Land Preservation) of the Visalia Municipal Code:
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Visalia Municipal Code
Title 18. Agricultural Land Preservation
Chapter 18.04. Agricultural Land Preservation Program
Article 1. General Provisions
Section 18.04.010 Title
This chapter may be cited as the “Agricultural Land Preservation Program” of the City of Visalia.

Section 18.04.020 Purpose and Intent
A. The provisions of this chapter are established to implement the goals of the City of Visalia General Plan and address the conversion of prime farmland and farmland of statewide importance through the adoption of an agricultural land preservation program.

The intent of the agricultural land preservation program is to establish a process for the required preservation of agricultural land through the acquisition of agricultural conservation easements or the payment of an in-lieu fee for projects subject to the provisions of this chapter.

B. The provisions of this chapter shall only apply to the extent that their application would not violate the constitution or laws of the United States, or of the State of California. The City of Visalia shall apply the chapter to avoid such unconstitutionality or illegality.

C. Nothing in this chapter shall be construed to abridge or narrow the City of Visalia's police powers. The City Council retains its full power and discretion in its ability to deny a proposed conversion on the basis that the proposed conversion is inconsistent with the public health, safety, or welfare because of the loss of agricultural land or otherwise, which the City is tasked with safeguarding.

Section 18.04.030 Objectives
The objectives of this chapter are to:

A. Protect agricultural land as a component of the regional economy in the southern San Joaquin Valley, including the City of Visalia.

B. Preserve agricultural lands from the effects of urban encroachment.

C. Balance the need for agricultural land conservation with other public goals for the City of Visalia, including the need for housing, commercial, industrial, and infrastructure development.
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Section 18.04.040 Interpretation of Provisions
A. Authority to Interpret. Where uncertainty exists regarding the interpretation of any provision of this chapter or its application to a specific site, the Community Development Director (“Director”) shall have the authority and responsibility to interpret such terms, provisions, and requirements.

B. Record of Interpretation. Code interpretations shall be made in writing and shall state the facts upon which the Director relied to make the determination. The Community Development Department shall keep a record of interpretations made pursuant to this chapter on file for future reference.

C. Applicability of Interpretation. Code interpretations shall be applied in all future cases, provided that any interpretation may be superseded by a later interpretation when the Director determines that the earlier interpretation was in error or no longer applicable under the current circumstances.

D. Right to Appeal. A code interpretation by the Community Development Director may be appealed to the City Council. The following procedure shall apply.

1. The applicant or any interested person adversely affected may, upon payment of an appeal fee as may be established by resolution of the Council, appeal any interpretation of the Community Development Director by filing a notice thereof in writing with the city clerk, setting forth in detail the interpretation and the grounds upon which the appeal is based within ten (10) days after the interpretation that is the subject of the appeal. Such notice shall state specifically where it is claimed there was an error or abuse of discretion by the Director.

2. Upon the filing of an appeal, the City Council shall set the matter for hearing.

Such hearings shall be held within thirty (30) days after the date of filing the appeal.

3. In holding the hearing on the matter, the Council may receive any and all information pertinent to the matter. Upon the close of the hearing, the Council shall vote to either confirm the decision of the Community Development Director, overturn the interpretation, or confirm the interpretation with modifications, and the Council may continue the item to the next meeting if necessary to direct staff to prepare a conforming resolution with findings, which shall be considered by the Council at the next scheduled Council meeting. In the case of a tie vote, the Community Development Director interpretation shall stand, and shall be considered final as of the date of the Council vote.

Section 18.04.050 Definitions
For the purpose of this chapter, the following definitions shall apply, except where the context of this chapter otherwise expressly requires. The definition of a word or phrase shall apply to any variants of the word or phrase.
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“Affordable housing” means housing with an affordable housing cost, as defined in Health and Safety Code Section 50052.5, or affordable rent, as defined in Health and Safety Code Section 50053, for households whose gross income does not exceed 120 percent of the area median income.
“Agricultural buffers” mean areas of permanent vegetation between agricultural land and urban development.
“Agricultural conservation easement” means a conservation easement executed pursuant to Civil Code section 815, et seq. for purposes of agriculture.
“Agricultural processing uses” means operations that transform, package, sort, or grade livestock or livestock products, agricultural commodities, or plant or plant products into goods that are used for the intermediate or final consumption, including goods for nonfood use. “Conversion” means to develop land through construction or improvement of land associated with approval of a project such that the land may not be converted back to agricultural use. “Converted land” means the area of land that would be converted as a result of project approval, as calculated in section 18.04.070(A).
“Farmland of statewide importance” is a category of farmland defined by the California Department of Conservation for purposes of the Farmland Mapping and Monitoring Program (FMMP).
“In-lieu fee” means payment in-lieu of direct acquisition of an agricultural conservation easement.
“Preserved land” means that land to be encumbered by an agricultural conservation easement, as determined in section 18.04.070(A).
“Prime farmland” is a category of farmland defined by the California Department of Conservation for purposes of the Farmland Mapping and Monitoring Program (FMMP). “Project” means a development project requiring an approval action from the City of Visalia that would authorize the construction or operation of buildings or uses. For purposes of this chapter, project does not include annexation of land, redesignation of a planned land use, or rezone action as these actions alone do not authorize development.
“Public facility” means a facility owned or operated by a public, quasi-public, or private entity used for the production, storage, transmission, collection, or treatment of electricity, wastewater, stormwater, water, and refuse, or for the provision of general hospitals, public cemeteries, public schools or open space, including both public and private parks and trails. “Qualified entity” means an entity qualified and approved to hold agricultural conservation easements in compliance with section 18.04.100.
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“Roadways” mean those roadways defined in the Transportation Element of the Visalia General Plan.
“Southern San Joaquin Valley” means the portions of Madera, Fresno, Kings, Tulare, and Kern counties located within the San Joaquin Valley Air Pollution Control District boundaries. “Sphere of influence” means the ultimate service area of an incorporated city, as established by the applicable Local Agency Formation Commission.
“Tier II” means the Tier II Urban Development Boundary as defined in the Visalia General Plan. “Tier III” means the Tier III Urban Growth Boundary as defined in the Visalia General Plan.

Article 2. Program Requirements
Section 18.04.060 Applicability
A. Projects Subject to Program. Projects authorized by the City that would result in the conversion of prime farmland or farmland of statewide importance are subject to the provisions of this chapter, unless exempt in accordance with subsection 18.04.060(B) or excluded in accordance with subsection 18.04.060(C).

B. Exemptions. Projects subject to any of the following criteria are not subject to the provisions of this chapter.

1. Location. Projects, or portions thereof, located on lands that are not within the Tier II Urban Development Boundary or the Tier III Urban Growth Boundary.

2. Size. Projects of five acres or less in gross area. The City may disallow the use of this exemption if it finds that the subject property has been subdivided into five- acre or smaller parcels in whole or in part to avoid the preserved land obligation in accordance with this chapter.

3. Prior Compliance. Projects on sites that have demonstrated compliance with the provisions of this chapter for affected acreage.

C. Exclusions. Projects consistent with any of the following criteria are not subject to the provisions of this chapter and shall be excluded from the preserved land obligation as outlined in section 18.04.070(A). Such exclusions may comprise the entire project area or may be a portion of the project area acreage. Only such portion of the project area that falls within any of the following categories shall be excluded.

1. Farmland Designation.
a. Acreage not designated as prime farmland or farmland of statewide importance on the most recent Farmland Mapping and Monitoring Program (FMMP) map published by the California Department of Conservation.
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b. Acreage that may be designated as prime farmland or farmland of statewide importance on the most recent Farmland Mapping and Monitoring Program (FMMP) map published by the California Department of Conservation but meets at least one of the following standards. Documents demonstrating compliance with one or both standards shall be submitted to the Director for evaluation and determination, which may include concurrence from the Department of Conservation.

1. Land Use. The land is not currently and has not been used for irrigated agricultural production for a minimum of four consecutive calendar years.

2. Soils. The soil type is not listed on the Soil Candidate Listing for Prime Farmland and Farmland of Statewide Importance for Tulare County, as maintained by the Department of Conservation for purposes of the FMMP.

2. Project Type or Use.
a. Affordable housing projects that comply with State Density Bonus Law. b. Agricultural processing uses.
c. Agricultural buffers.
d. Public facilities.
e. Roadways.

Section 18.04.070 Preservation Requirement
A. Determination of Preserved Land Obligation. The preserved land obligation shall be calculated at a ratio of one acre of preserved land for each acre of converted land.

Converted land acreage shall be calculated by determining the applicable project acreage less the acreage of exclusions.

B. Method of Preservation. The preserved land obligation, as established in section

18.04.070(A), shall be preserved through acquisition of an agricultural easement in accordance with section 18.04.080, unless eligible for payment of an in-lieu fee in accordance with section 18.04.090.

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Article 3. Methods of Preservation
Section 18.04.080 Acquisition of Agricultural Conservation Easement A. Easement Acquisition. The applicant shall convey, or arrange for the conveyance of, an area of land meeting its preserved land obligation to a qualified entity for execution of an agricultural conservation easement thereon. This shall include the conveyance of land within an agricultural land mitigation bank. Such land shall meet all requirements for an agricultural conservation easement in accordance with this chapter.

B. Eligibility of Land for Easement. The preserved land shall meet all of the following requirements to be eligible for placement in an agricultural conservation easement.

1. The preserved land shall be located in the southern San Joaquin Valley, with preference afforded to preserved land located within 10 miles of the City limits.

The preserved land must be located outside any city’s limits and sphere of influence.

2. The preserved land shall be designated as prime farmland or farmland of statewide importance on the most recent published FMMP map.

3. The preserved land shall be a minimum of 20 contiguous acres in size.

4. The preserved land shall be zoned and planned for agricultural uses consistent with the purposes of an agricultural conservation easement.

5. The preserved land shall have at least one verified source of water.

6. The preserved land shall not be encumbered by any use or structure that would be incompatible with the purpose of the agricultural conservation easement. Such uses shall be deducted from the total acreage being preserved.

C. Terms of Easement. The agricultural conservation easement shall be consistent with the purpose and intent of this chapter and shall include, at a minimum, the following terms.

1. The agricultural conservation easement prohibits all residential, commercial, or industrial development and any other land uses or activities that substantially impair or diminish the agricultural productive capacity of the preserved land or that are otherwise inconsistent with the conservation purposes of this chapter.

2. The agricultural conservation easement prohibits the landowner from entering into any additional easement, servitude, or other encumbrance that could prevent or impair the potential agricultural use of the preserved land. 240
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3. The agricultural conservation easement limits the construction of structures to those designed to facilitate agricultural use of the property, except that this division shall not prohibit replacement of an existing home that was present at the time the easement was established so long as the replacement of the home does not prevent the agricultural use of the property. Secondary dwelling units or farmworker housing may also be permitted, so long as the primary use of the property is agricultural.

4. The preserved land to be subject to the agricultural conservation easement will be either obtained from a willing seller or voluntarily conveyed by the applicant.

5. Any existing financial liens or financial encumbrances on the preserved land shall be subordinated to the agricultural conservation easement.

6. The agricultural conservation easement shall be approved by the qualified entity that will hold the easement and executed by all parties with an interest in the preserved land.

7. The agricultural conservation easement is in recordable form and contains an accurate legal description of the preserved land.

8. The agricultural conservation easement names the qualified entity as an intended beneficiary and authorizes it to enforce all terms of the easement.

9. The agricultural conservation easement recites that it is intended to satisfy the preserved land obligation imposed by this chapter and that it is subject to the requirements set forth in this chapter.

10. The agricultural conservation easement provides that if the qualified entity holding the easement ceases to exist, ownership of the easement shall pass to another qualified entity.

11. The agricultural conservation easement has been approved as to form by the City of Visalia, in accordance with the section 18.04.080(D).

D. Approval of Easement. The City Council shall approve the form and content of all agricultural conservation easements to ensure consistency with this chapter.

1. Should the easement be consistent with a form previously approved by the City Council, the City Council may designate an authorized party to review and confirm consistency of subsequent easements prior to execution by third parties without further approval by the City Council.

2. Should the easement deviate from a form approved by the City Council, the City Council shall review and approve proposed amendments prior to execution by third parties.
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E. Holder of Easement. All agricultural conservation easements acquired for purposes of this chapter shall be held by a qualified entity, as determined in section 18.04.100.

Section 18.04.090 Payment of In-Lieu Fee
A. Eligibility of In-Lieu Fee Payment. To be eligible for payment of an in-lieu fee to satisfy the preserved land obligation, either of the following standards must be met.

1. The total preserved land obligation is less than 20 acres.

2. If the total preserved land obligation is 20 acres or more, the applicant must demonstrate at least one of the following to the satisfaction of the City:
a. No qualified entity exists;
b. The applicant has met with all qualified entities and all such entities are unable or unwilling to assist with the acquisition of an agricultural conservation easement, as certified in writing to the City; or c. Working with a qualified entity, the applicant has made at least one good faith offer to purchase an agricultural conservation easement, but any and all such offers have been declined by the potential seller, as certified in writing to the City.

B. Determination of Fee. The in-lieu fee shall be determined on a case-by-case basis and include the following components. The applicant shall determine the amount of the in- lieu fee with supporting documentation from at least one qualified entity.

1. The purchase price of an agricultural conservation easement, which shall equal 35 percent of the average price per acre of three comparable lands, as confirmed through submittal of an appraisal report prepared by a licensed appraiser with experience in agricultural land appraisal. The appraisal shall be based on the highest and best use of the land without an agricultural conservation easement.

The price per acre shall be adjusted for inflation based on an estimate of the time required to acquire the agricultural conservation easement following payment of the in-lieu fee. The price per acre shall be multiplied by the preserved land obligation to determine this component of the in-lieu fee.

2. All transaction costs associated with the acquisition of the agricultural conservation easement, which may include anticipated due diligence and administrative costs.

3. An amount sufficient to establish an endowment for the cost of monitoring, administering, and enforcing the agricultural easement in perpetuity.

4. A reasonable amount to cover additional contingencies. 242
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5. In no event shall the in-lieu fee established pursuant to this section exceed a reasonable estimate of the total of:
a. The cost of acquiring and managing the agricultural conservation easement that the applicant would otherwise be required to create to satisfy its preserved land obligation under this chapter; and b. The cost of administering the in-lieu fee.

C. Fee Approval and Remittance. City Council shall approve the amount of the in-lieu fee established under section 18.04.090(B). Approval shall occur prior to remittance of the in-lieu fee directly from the applicant to the qualified entity.

D. Use of Fee. In-lieu fees collected shall be used solely for the acquisition, administration, monitoring, and enforcement of agricultural conservation easements in accordance with this chapter and such easements shall be located within the Southern San Joaquin Valley.

E. Reporting Requirements. The annual report required in section 18.04.100(D) shall include an accounting of the use and status of all in-lieu fees collected in accordance with this program.

Article 4. Monitoring and Compliance
Section 18.04.100 Qualified Entity
A. Requirements. To be considered a qualified entity for purposes of holding agricultural conservation easements in accordance with this chapter, an entity must be a nonprofit public benefit corporation, operating within the state of California, that is qualified to hold conservation easements under California Civil Code section 815.3 and be approved by the City Council for the purpose of holding and managing agricultural conservation easements in accordance with section 18.04.100(B).

B. Approval Process. In considering whether to approve an entity as a qualified entity for purposes of this chapter, the City Council shall consider the following criteria.

1. Whether the entity's principal purpose includes holding and administering easements for conserving and maintaining lands in agricultural production;

2. The extent and duration of the entity's involvement in agricultural land conservation within the southern San Joaquin Valley;

3. Whether the entity has been accredited by the Land Trust Accreditation Commission;

4. Whether the entity is a member in good standing of an established and widely recognized national or statewide association of land trusts; and 243
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5. Whether the entity’s easement template is consistent with the terms of this chapter.

6. Any other information or requirements the City finds relevant under given circumstances.

C. Duties.

1. The qualified entity shall monitor the use of all preserved land subject to agricultural conservation easements held by the entity and enforce compliance with the terms of those agricultural conservation easements.

2. If a qualified entity intends or reasonably expects to cease operations, it shall assign any agricultural conservation easements it holds to another qualified entity.

D. Monitoring and Reporting. The qualified entity shall submit a report to the City on or before February 1 of each year, describing the activities undertaken by the entity under this chapter for the previous calendar year. The report shall describe the status of the agricultural conservation easements for purposes of satisfying the preserved land obligations under this chapter held by the entity, including all costs associated with acquisition of agricultural conservation easements acquired in accordance with this chapter, a summary of all actions taken to enforce its agricultural conservation easements acquired in accordance with this chapter, and an accounting of the amount and use of administrative and in-lieu fees remitted to it by applicants. Confirmation of the accreditation status of the qualified entity shall also be reported. The report shall also include any other applicable reporting requirements as specified by this chapter.

Section 18.04.110 Compliance Review
A. All preservation methods proposed by an applicant to comply with this chapter shall be reviewed by the Community Development Director for consistency with the terms and purposes of this chapter, except as expressly stated otherwise.

1. The City of Visalia shall not issue any permit directly authorizing or resulting in disturbance to the converted land acreage until the preserved land obligation is satisfied in accordance with this chapter. The preserved land obligation shall be satisfied when:
a. The approved agricultural conservation easement has been recorded; or b. When the applicant has remitted the approved in-lieu fee to the qualified entity.

B. If a court issues a judgement declaring that the purposes of this chapter and of an agricultural conservation easement can no longer be fulfilled by enforcement of that easement, the qualified entity holding that easement may extinguish the easement by selling it to the fee owner of the preserved land, if the following requirements are met:
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Chapter 18.04 Agricultural Land Preservation Ordinance
May 2023 Page 11 of 11

1. Either the action was not contested and the judgement was entered pursuant to stipulation, or the City of Visalia was a party to the action and stipulated to the judgement; and

2. The qualified entity shall use the proceeds of sale to acquire an agricultural conservation easement in other preserved land in compliance with this chapter.

Section 18.04.120 Severability
If any portion of this chapter is held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter. The City Council declares that it would have enacted this chapter and each section, division, paragraph, sentence, clause, or phrase thereof even if a portion of the chapter were declared unconstitutional. 245
Ordinance No. 2023-02
Section 2: Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstances, is or any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not effect the validity or enforceability of the remaining sections, subsections, subdivision, paragraphs, sentences, clauses or phrases of these Ordinances, or its application to any other person or circumstance. The City Council of the City of Visalia hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

Section 3: Construction. The City Council intends these Ordinances to supplement, not to duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in light of that intent.

Section 4: Effective Date. These Ordinances shall take effect thirty days after its adoption.

Section 5: Certification . The City Clerk shall certify the passage and adoption of this Ordinance and shall cause the same to be published or posted according to law.

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Exhibit “B”
Public Correspondence Received
247
248
249
250
From: [email protected]
To: Paul Bernal
Subject: Ag Preservation Ordinance
Date: Tuesday, March 21, 2023 1:38:59 PM
Good Afternoon Paul,
I attended the March 5, 2023 presentation on the Ag Preservation Ordinance and reviewed the ordinance and would like to offer the following comments:

First, Section 18.04.060 (C)(1)(b) states that the property can be excluded if it either hasn't been farmed for four consecutive years or is not on the soil list.

My first reading was that
use of the word "either" is confusing.

Perhaps it should say "one of both of the following."

I
would also like to know whether the Director can make this decision based on information submitted, or if it must go to the Department of Conservation.

It would be clearer if there
was a description of when the Department of Conservation would be required to concur.

b. Acreage that may be designated as prime farmland or farmland of statewide importance on the most recent Farmland Mapping and Monitoring Program (FMMP) map published by the California Department of Conservation but does not meet either of the following standards. Documents demonstrating compliance with either or both standards, shall be submitted to the Director for evaluation and determination, which may include concurrence from the Department of Conservation.

1. Land Use. The land is not currently and has not been used for irrigated agricultural production for a minimum of four consecutive calendar

years.

2. Soils. The soil type is not listed on the Soil Candidate Listing for Prime Farmland and Farmland of Statewide Importance for Tulare

County, as maintained by the Department of Conservation for

purposes of the FMMP.

Second, the current Department of Conservation Farmland Finder maps have not been updated since 2018. They are supposed to be updated every two years, so in using these maps, without additional consideration for exclusions, is relying on outdated information.

Perhaps there should be another mechanism if those maps are outdated.

Thank you for the opportunity to comment on the proposed ordinance.

Darlene Mata 251
252
253

March 27, 2023

Paul Bernal
Community Development Director
City of Visalia
315 East Acequia Avenue
Visalia CA 93291

Re: Comment letter on Draft Agricultural Preservation Ordinance_02_24_2023, presented to Visalia City Council on March 6, 2023

Dear Mr. Bernal,

The Central Valley Partnership is dedicated to achieving social, racial, environmental and economic justice in the San Joaquin Valley. We recognize land use policies as an important aspect of our mission, especially related to farmland preservation, infill development and the promotion of smart growth principles.

On March 6, 2023, the Visalia City Council received a staff presentation and provided direction on a draft Agricultural Preservation Ordinance (APO) to implement an Agricultural Mitigation Program as outline in its General Plan Policy LU-P-34. While the overall draft APO is sound, there are a few provisions that are cause for concern as they present potential loopholes or are vague enough to threaten effective implementation.

Here are a few of the most noteworthy concerns that we identified:

Article 1. Program Requirements

Section 18.04.060 Applicability
C. Exclusions

1. Farmland Designation
Subsection b1. Land Use – The policy related to “exclusions” from a Prime Farmland or Farmland of Statewide Importance under this section appears to allow deference to Visalia’s Community Development Director for “evaluation and determination” related to whether the farmland may be in compliance with the California Department of Conservation’s assessment of prime farmland. Of particular concern is subsection #1b1, which appears to allow for exclusion if, “The land is not currently and has not been used for irrigated agricultural production for a minimum of four consecutive calendar years.”
By appearing to allow exclusion for lands that have been fallowed is not sufficient to negate the need for them to be included for mitigation for their loss. Even more problematic, such an exemption opens a loophole for landowners to stop irrigating a few years prior to plans to develop land as an attempt to avoid mitigating for the loss of these farmlands. Even without irrigation, the productive capacity of the soils is still present, and some fallowing practices can even improve the productive capacity of farmland.

In any case, such an exclusion of these non-irrigated lands for a mere four years is not warranted and threatens the integrity of the overall policy.
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Article 3. Methods of Preservation

Section 18.04.080 Acquisition of Agricultural Conservation Easement B. Eligibility of Land for Easement

1. “The preserved land shall be located in the southern San Joaquin Valley, with preference afforded to preserved land located within 10 miles of the City limits.” During the presentation of the draft APO, some city council members questioned whether the 10 mile preference for preserving land be given, some seemed to prefer land that was outside of Tulare County. Ideally, such a preference will be retained and emphasize farmland preservation of properties that are proximate to the threatened farmlands located near urbanized centers just outside their spheres of influence. This distinction – of mitigating for the development value of land as well as for its soil characteristics – is also vitally important to establishing the conservation easement value of the farmland being mitigated for under the future APO. At the least, it makes sense that Visalia should seek to make investments in farmland preservation available to Tulare County farmers first and as a priority.

Section 18.04.090 Payment of In-Lieu Fee
B. Determination of Fee
This section of the draft APO is unclear. Already with the in-lieu fee being determined on a case- by-case basis there is a heightened need for specificity and policy direction, which is attempted in subsection #1: “The purchase price of an agricultural conservation easement, which shall equal 35 percent of the average price per acre of three comparable lands as confirmed through submittal of an appraisal report prepared by a licensed appraiser…”
This definition of comparable lands needs clearer definition, particularly associating it with similar soil quality of the farmland being lost to developed, and with the establishment of a mitigation value that accounts for the proximity of farmland in relationship to proximity to the city. In order to purchase agricultural conservation easements of similar characteristics to farmland that is being lost to development, the value of these farmlands needs to account for their higher valuation due to urbanized pressure. In turn, it will be possible to mitigate for like properties to the farmland being consumed.

The Visalia Agricultural Preservation Ordinance of 2023 is a starting point from which future, more robust policies can be enacted in coming years. Given that the establishment of an Agricultural Mitigation Program on a 1:1 ratio of one acre of preserved land for each acre of converted land as a benchmark, it roughly equates to the loss of fifty percent of all farmland in the region. Such losses of farmland threaten the economic and ecological integrity of the region.

With Southern California as a cautionary example, we hope that the city’s APO policy can be strengthened in future years. It is also important that this current policy be established with strong foundations so that it may be emulated by other cities in Tulare County, a task that will also be addressed in subsequent general plan advocacy at those municipalities.

Sincerely,

Daniel O’Connell
Executive Director
Central Valley Partnership

255
From: Skip Moss
To: Paul Bernal
Subject: Draft Agricultural Preservation Ordinance Comments Date: Monday, March 27, 2023 10:11:06 PM
Attachments: image001.png
You don't often get email from [email protected]. Learn why this is important Mr. Bernal,

We would like to provide comments on the City of Visalia’s Draft Agricultural Preservation Ordinance (“Ordinance”). Natural Resources Group, Inc. is a local company, headquartered in Clovis, CA, that provides mitigation to help offset impacts to many different resources, including losses of farmland.

First, we would like to commend the City on taking an important step in helping to preserve the San Joaquin Valley’s rich agricultural heritage.

In reviewing the City’s proposed ordinance, we wanted to share a couple of thoughts as a mitigation “practitioner”, with decades of experience helping project proponents fulfill their mitigation requirements.

Location of Mitigation: The Ordinance in Article 3, Sect. 18.04.080, B.1, states that a preference be afforded to preserved land located within 10 miles of the City limits. Locating the preservation proximally to the lost resource may help the City achieve open space buffers between neighboring communities, but the implementation of geographic restrictions (even preferences) should be implemented with caution. Geographic restrictions often cause the price of preservation within those area to increase. This is because lands within this boundary will immediately be perceived as having additional value or a lack of supply (or perceived lack of supply) will drive price increases that are not in keeping with regional pricing trends. If the price to implement the Ordinance begins to inhibit the ability for the City to achieve other public goals, then it may be difficult for the City to achieve its objective of finding “balance”.

The preserved farmland should ideally be located in areas that fulfill the Ordinances other objectives; protecting the regional economy and protecting agricultural lands from urban encroachment.

In-Lieu Fee Program: In-Lieu Fee Programs (“ILF”) are a common tool used to offset impacts when more common approaches (like easement acquisition) are difficult or infeasible. The less than 20-acre threshold for participation in the ILF (Article3, Sect. 18.04.090, A.1) would allow smaller projects to mitigate, where they might have difficulty finding a willing seller of such a small acreage easement. The criteria described in Article3, Sect. 18.04.090, A.2, provide a relief mechanism when a project proponent is having difficulty sourcing preservation opportunities. Both conditions for using the ILF highlight why ILF programs can be very difficult to successfully implement. ILF’s effectively transfer the liability for finding suitable ag preservation from the project proponent, to the City – but the circumstances that created the need for the ILF, may then be encountered by the City as it looks to protect land with the collected fees. ILF programs, especially those implemented by cities and counties, often struggle to acquire sufficient lands to fulfill their commitments. If regional land values are appreciating, the fees collected are almost immediately insufficient to meet those 256
commitments – especially if acquisition lags fee-collection for any significant amount of time.

ILF’s are a valuable conservation tool, but programs like “farmland mitigation banks” may fulfill a similar role and not expose the City to the liability of having to implement the preservation.

Thank you for the opportunity to provide input on the City of Visalia’s Draft Agricultural Preservation Ordinance. We would be happy to answer any questions the City might have, or provide specific examples related to the comments above. We look forward to working with the City in its ongoing effort to protect the San Joaquin Valley’s agricultural heritage.

Thank you,

~Skip Moss
President l Natural Resources Group, Inc.

Richard “Skip” Moss
Natural Resources Group, Inc.
559.804.9833
[email protected]
www.natural-resources-group.com

257
February 2023
Visalia Municipal Code
Title 18. Agricultural Land Preservation

QUESTIONS & COMMENTS

18.04.090 (B)3. Payment of In-Lieu Fee, Determination of Fee:

The term “perpetuity” with respect to this provision is tied to the lifetime of the easement. If the term “perpetuity,” on the other hand, applied to the life of the easement--“a restriction making an estate inalienable perpetually or for a period beyond certain limits fixed by law,” i.e., for as long as the easement exists, then, the provisions for monitoring, administering and enforcing the easement would terminate upon expiration of the easement. For the purpose of clarification, therefore, the Ordinance needs to specify whether qualified easements must be permanent or if they may be merely long term.

18.04.060 (B)3. Applicability, Exemptions, Prior Compliance:

Are such projects exempt because a previous project on the site either had obtained an agricultural easement still in effect or paid an in-lieu fee? Please explain and provide examples of projects on sites that have demonstrated compliance

18.04.060 (C)1.b.1&2 Applicability, Exclusions, Farmland Designation, Land Use and/or Soils:

Why should the ordinance exempt projects proposed on prime farmland that have for any reason been out of production for four years or longer? Isn't fallowed land generally more productive than land planted every year? Why exclude any land suitable for agriculture regardless of its history? Has the City identified such land within its Urban Development Boundaries? Why not require the Director to request validation of a claim of exemption on the basis of soil type?

18.04.060 (C)2 Applicability, Exclusions, Project Type or Use:

What are the justifications for prioritizing each of the specified project types over the value of farmland preservation?
*Affordable Housing
*Agricultural processing Isn't off-site food/fiber processing considered an industrial use? *Agricultural buffers Please explain this kind of project, the likely proponents, locations & legal instrument used to converted farmland into “permanent” vegetation. *Public facilities
*Roadways Please give examples of roadway projects and potential applicants. Do these include streets internal to subdivisions?

18.04.080(B)1. Acquisition of Agricultural Conservation Easement, Eligibility of Land for Easement:

Why shouldn't easements be located within a city's sphere of influence, since the City's objective is to preserve farmlands from the effects of urban encroachment? Isn't this provision assuring the encroachment of urban development far beyond the City's urban development boundaries? Certain members of the Council expressed an interest at the second public workshop in assuring unincumbered urban encoachment by exporting its preservation responsibilies far beyond any conceivable future development planning area.

18.04.080(D)1. Acquisition of Agricultural Conservation Easement, Approval of Easement:

Isn't there potential for abuse if the responsibility for reviewing the form of easements for consistency is delegated to a private party?
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18.04.110 (A)1.b. Compliance Review:

I don't understand this provision: Is the project applicant who is eligible to pay an in-lieu fee able to break ground within three years of making an in-lieu fee payment or not until three years or less have passed after making such payment? When is the obligation satisfied “if the in-lieu fee is [not] used to acquire an agricultural conservation easement?”
There needs to be provisions in the ordinance to retroactively subject projects to its requirements which are located in Tier II and which were unlawfully approved in violation of the Agricultural Preservation Mitigation Measures in the City’s General Plan. The ordinance should also include an appendix containing the list of those projects which is made available for public review prior to adoption by the City Council.

Respectfully submitted,
Don Manro
523 North O Street
Tulare CA 93274
259

427 South Garden Street - Visalia, California 93277
tel: 559.738.0211 - fax: 559.622.9477
[email protected] - www.sequoiariverlands.org
March 24, 2023

Paul Bernal, City Planner
The City of Visalia
315 E. Acequia
Visalia, CA 93291

Re. Visalia Municipal Code Title, 18 Agricultural Land Preservation, Chapter 18.04 Agricultural Land Preservation Program

Dear Mr. Bernal,

Sequoia Riverlands Trust (SRT) is a California Nonprofit Corporation public benefit corporation that has protected more than 43,300 acres of natural lands across the southern San Joaquin Valley through the establishment of nature preserves and of conservation easements on agricultural and other working lands. As an accredited land trust, SRT holds 75 conservation easements on approximately 26,000 acres of land—mainly working farms and ranches—as well as ten deed restrictions on 4,100 acres in and around the Carrizo Plain. SRT respectfully submits the following comments to the proposed Draft Agricultural Preservation Ordinance as submitted to the City Visalia Council on March 6, 2023, for your consideration;

Article 1. General Provisions

Section 18.04.020 Purpose and Intent

• SRT suggests the City of Visalia (City) consider including the option for the purchase of credits in an Agricultural Land Mitigation Bank as an acceptable form of mitigation.

Section 18.04.050 Definitions

• SRT suggests including a definition for Agricultural Land Mitigation Bank.

Article 2. Program Requirements

Section 18.04.070 Preservation Requirements

• B. Methods of Preservation
o SRT suggests including purchasing credit in an Agricultural Land Mitigation Bank as an acceptable requirement.

260

Article 3. Methods of Preservation

Section 18.04.080 Acquisition of Agricultural Conservation Easement

• B. Eligibility of Land for Easement
o SRT suggests that the applicant be the entity to certify in writing. The qualified entity does not have a contractual obligation or any protection.

• C. Terms of Easement
o 5. SRT suggests narrowing this requirement to any and all financial liens or financial encumbrances shall be subordinated to the conservation easement.

It would put an undue burden on the Landowner to obtain subordination for easement holders.

o 11. SRT suggests the City sign the Conservation Easement stating that it has satisfied the Agricultural Preservation Ordinance and is accepted to form.

• Additional term:
o SRT suggests the City consider allowing for Secondary Dwellings or Farm worker housing. Various Grant programs funded through, The California Department of Conservation for the protection of Agricultural lands require the conservation easement allow provide for this. For reference and consideration we have included the following as contained in the Round 9 Sustainable Agricultural Lands Conservation Protection Program Draft Guidelines:

Additional Requirements and Considerations

Single Family Residences, Secondary Dwelling Units, and Farm Worker Housing

Each single-family residence reserved in the deed is limited to a maximum living area that is consistent with grantee’s policies, local building codes, and the surrounding neighborhood. The residence must not significantly impair the conservation purpose of the deed.

The California Legislature has enacted numerous policies to address the state’s shortage of housing, particularly affordable housing. Easements funded through this program shall not prohibit either secondary dwelling units or farmworker housing. Any easement restrictions on these dwellings cannot be more restrictive than California Government Code section 65852.2 or California Health and Safety Code section 17021.6, respectively.

Section 18.04.090 Payment of In-Lieu Fee

• A. Eligibility of In-Lieu Fee
o 2. b. & c. The applicant should be the entity required to certify in writing. The qualified entity does not have a contractual obligation or any protection.
261

• B. Determination of Fee

o 1. SRT suggests clarification as to what land is being appraised. Is the land subject to development the land required to be appraised as conserved with an agricultural conservation easement?

• C. Fee Approval and Remittance
o SRT suggests clarifying the transaction referred to in the sentence “Approval shall occur prior to transaction”.

• D. Use of Fee
o SRT suggests the reference to agricultural easement be revised to refer to conservation easements in plural.

Article IV Monitoring and Compliance

Section 18.04.100 Qualified Entity

• D. Monitoring and Reporting
o SRT suggests that this more generally require the qualified entity to conduct annual monitoring for compliance with easement conditions. The qualified entity shall submit their annual monitoring report on their usual form to the City before February 1 of the year. The report will also include a reporting of the stewardship endowment monies held, and any In-Lieu Fees for the purpose of meeting the requirement of this Ordinance.

Section 18.04.110 Compliance Review

• A. 1 b.
o Please clarify this paragraph.

Sequoia Riverlands Trust thanks you for your time and consideration. We look forward to working with the City of Visalia to protect and preserve our valuable agricultural lands, and please feel free to reach out to us for further consultation on this ordinance or on agricultural conservation easements in general.

Sincerely,

Logan Robertson-Huecker, PhD
Executive Director

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737 North Ben Maddox Way • Visalia, CA 93292 • (559) 732-8301 • (559) 732-7029 FAX E-mail: [email protected] • Web: www.tulcofb.org • Join Farm Bureau: www.joinfb.org

March 24, 2023

City of Visalia Council Members
Attn: Paul Bernal
315 E. Acequia Avenue
Visalia, CA 93291

Dear Council Members, and Mr. Bernal:

Tulare County Farm Bureau is a tax exempt, non-governmental membership association representing more than 1,100 farmers and ranchers in Tulare County. We have long held the belief that agriculture mitigation is not a real solution for the protection of farmland. Easements held in perpetuity with the changing landscape of our industry, and particularly the uncertainty of the Sustainable Groundwater Management Act (SGMA) laws creates significant concerns about how to implement an Ag Preservation Ordinance.

The face of California agriculture is changing rapidly. The industry is under constant threat, with onerous laws and regulations adding complexity and uncertainty to a landowner in determining their best practices for farming and remaining a viable business. Low commodity prices coupled with increasing labor costs, water costs, governmental regulations, and supply costs are contributing factors that makes farming risky and unpredictable. Whether the City re-initiates an agriculture preservation ordinance or not, these are facts, and the industry is having to make difficult choices about land use, in light of those issues. This clouds the discussion around whether agriculture mitigation in fact helps or hinders the long term preservation of farmland. The City of Visalia knows this well, and firsthand, with their own involvement in farming and land holdings of walnuts and pecans.

As much as weather is a variable, farming itself and commodities prices are cyclical too and dependent on a variety of factors. It should be acknowledged by the City and staff, that many of these changes are out of the hands of the landowners and farmers to control. One year they may be able to farm and the next they cannot. The City Council and it’s staff need to incorporate flexibility be able to make changes to the ordinance as the realities of farming changes year to year. Tulare County Farm Bureau is committed to helping ensure viability for farmers and ranchers, but protecting their ability to farm is under constant threat. It seems like an overburdensome request to preserve every acre of farmland within Tier II and III, when farmers are currently trying to simply preserve their livelihoods. Contemplating the need to permanently set aside land for preservation of farming, when other farmland may be idled or their ability to farm extinguished is challenging. President Dwight D.

Eisenhower once said, “Farming looks mighty easy when your plow is a pencil and you’re a thousand miles from the corn field.” Often times we see outside interests seeking to influence the ag preservation policy who have little to no knowledge of what it takes to make a farm and the land profitable.

In speaking with a local land appraiser, they offered, that the size of a property plays a key role in its ability to produce enough agricultural goods and services to constitute the economic feasibility of that property. In the local Tulare County market, parcels less than 20 acres in size have a different highest and best use than that of a 100-acre property. Properties under 20 acres are desirable in the market for rural residential development.

Rural residential properties tend to sell for higher prices than larger properties because the buyers are not purchasing these properties based on their agricultural income producing ability, but for their residential desires.

When it comes to farming, efficiencies are gained when the cost can be divided over a larger acreage. Small properties do not have this luxury and are not truly capable of producing enough income on a stand-alone basis to cover the basic input costs associated with farming. Therefore, small farms are not usually considered economically viable farming units. If a property that small is not considered economically viable, then why

TULARE COUNTY FARM BUREAU

Mission: to promote and enhance the viability of Tulare County agriculture. 263

should it be required to be preserved in perpetuity for agriculture? In order to preserve agriculture, it should first be determined that it is considered viable for agriculture. Consideration should be given to only preserving true agricultural properties, and not rural residential properties. Although there is not an industry standard on size, feasibility for production is usually much larger than 20 acres.

The following summary statements provide our suggested changes to the draft APO:
- The acreage threshold for mitigation should be set at 20 acres or more, a 5-acre project should not trigger the mitigation requirement. If preserved land should be a minimum of 20 contiguous acres in size, then 20-acre minimum should be standardized across the draft. - The 10-mile radius from town is not reasonable, it will unlikely be possible to locate land of suitable type to be sufficient to comply with the ag mitigation requirements. We recommend removing the 10-mile language.
- Considering the significant changes that SGMA is implementing now, requiring multiple sources of water for agriculture production will be a speculative and untenable situation that may result in the land not being farmable. It should be noted, that SGMA is changing agricultural land uses quicker than the State Dept. of Conservation’s FMMP can even track, and farmers are already having to fallow lands that lack sufficient water.
- The stipulations for using the in-lieu fee should be the same as the mitigation requirement, that it can be applied to land within the 5-county region identified. A landowner should be able to opt in to the in-lieu fee choice without having to incur additional costs to prove that an attempt has been made. - After consultation with local appraisers, the 35% of average price of three comparable parcels referenced under Determination of Fee seems arbitrary and unsupported. Easements are valued based on what rights the property owner is forfeiting. Depending on the location of the easement and the likelihood of development, an easement could cost anywhere from 5% to 50%, with most transactions closer to the lower end. The 35% seems to be an artificial number that could increase costs unnecessarily and hinder economic development for the City of Visalia.
- Utilizing the in-lieu fees solely for acquiring agricultural conservation easements burdens all Tulare County farmers. Instead, draft language should be modified or in-lieu fees earmarked to help the existing farmers to continue farming within the City’s urban development boundaries or sphere of influence. The entire purpose and intent of the Agricultural Land Preservation Program is to preserve prime agricultural land and what better way to do that than by assisting those who are farming. In-lieu fees should be used to help existing farmers within the City’s Sphere of Influence, to provide abatement and clean up services for trash dumping, rural crime, nuisance, trespass, and other challenges that exist for farmers at the edge of urban development.

Tulare County Farm Bureau was founded in 1917, right here in Visalia. We are a non-profit organization made up of agricultural producers in Tulare County who understand farming and ultimately rely on its success.

Our organization wants nothing more than to preserve prime farmland and continue to produce high-quality crops that provide food and fiber to more than 90 countries throughout the world, however, we feel strongly that this new ordinance is not helping to accomplish that goal. If you want to better understand the challenges facing farmers, specifically Visalia area farmers, please don’t hesitate to contact our office.

Sincerely,

Tricia Stever Blattler
Executive Director

264
Visalia City Council
Staff Report
Visalia City Council
707 W. Acequia
Visalia, CA 93291
File #: 23-0176 Agenda Date: 5/15/2023 Agenda #: 8.

Agenda Item Wording:

Authorize the City Manager to execute a new sole source contract with Ruckstell California Sales Co. for service, repair, and parts for refuse truck bodies including Heil, Mammoth and Edge bodies, and Tommy Liftgates. This contract will be for one year, with 4 one-year optional renewals with a not to exceed amount of $400,000 per year, $2,000,000 over the life of the contract.

Deadline for Action: 5/15/2023
Submitting Department: Public Works
Contact Name and Phone Number:

Mike Morgantini, Fleet Supervisor, [email protected] <mailto:[email protected]>, 713-4182; Nick Bartsch, Public Works Director, [email protected] <mailto:[email protected]>, 713-4052 Department Recommendation:

Staff recommends that Council authorize the City Manager to execute a new sole source contract with Ruckstell California Sales Co. for service, repair, and parts for Tommy pick-up truck liftgates, Heil side-loader refuse truck bodies, Mammoth front-loader refuse truck bodies and Edge roll-off refuse truck bodies. This contract will be for one year, with 4 one-year optional renewals with a not to exceed amount of $400,000 per year, $2,000,000 over the life of the contract.

Background Discussion:

Ruckstell California Sales Co. is the only authorized franchise dealer in the Central Valley for service, repair, and parts for Tommy pick-up truck liftgates, Heil side-loader refuse truck bodies, Mammoth front-loader refuse truck bodies, and Edge roll-off refuse truck Bodies. The City of Visalia currently has over 70 of these types of solid waste refuse truck bodies in use. In an effort to maintain consistency and the reliability of its fleet, the ability to service, repair and purchase replacement parts for this specialty equipment is critical. In many cases, this is only possible through the utilization of a contract through a factory authorized dealer.

On average, over the past four years, the City has spent over $300,000 per year on related parts and service. At the current rate, with increased prices of equipment and parts, the City is on track to exceed $360,000 in the current fiscal year.

Fiscal Impact:

This contract will have a not to exceed amount of $400,000 per year, $2,000,000 over the life of the contract. Expenditures will be paid initially out of the Fleet fund (501). These costs are then charged to the user department through monthly allocations.

Prior Council Action:

Visalia City Council Printed on 5/12/2023Page 1 of 2
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File #: 23-0176 Agenda Date: 5/15/2023 Agenda #: 8.

None
Alternatives:

These services could be competitively bid via the Request for Proposals (RFP) process through the City’sPurchasing Department. (As the only authorized franchise dealer for these parts and services, Ruckstell California Sales Co. would be the only qualified proposer.) Recommended Motion (and Alternative Motions if expected):

Authorize the City Manager to execute a new sole source contract with Ruckstell California Sales Co. for service, repair, and parts for Tommy pick-up truck liftgates, Heil side-loader refuse truck bodies, Mammoth front-loader refuse truck bodies and Edge roll-off refuse truck bodies. This contract will be for one year, with 4 one-year optional renewals with a not to exceed amount of $400,000 per year, $2,000,000 over the life of the contract.

Environmental Assessment Status:

N/A
CEQA Review:

N\A
Attachments:

N/A
Visalia City Council Printed on 5/12/2023Page 2 of 2
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Visalia City Council
Staff Report
Visalia City Council
707 W. Acequia
Visalia, CA 93291
File #: 23-0178 Agenda Date: 5/15/2023 Agenda #: 9.

Agenda Item Wording:

Authorize the City Manager to execute a Restricted Grant Agreement between the City of Visalia and the California Department of Transportation, as well as any future amendments, for the North Visalia Beautification Project application to be submitted to the Clean California Local Grant Program and appropriate $3.1M, contingent upon grant award. Resolution No. 2023-16 required.

Deadline for Action: 05/31/2023 Grant Deadline.

Submitting Department: Administration - CIP Engineering Contact Name and Phone Number:

Dolores Verduzco, Financial Analyst, [email protected], (559) 713-4540 Diego Corvera, Civil Engineer, [email protected], (559) 713-4209 Frank Senteno, City Engineer, [email protected] (559) 713-4331 Nick Mascia, Assistant City Manager, [email protected], (559) 713-4323 Department Recommendation:

Staff recommends that the City Council authorize the following:

1. Authorize the City Manager to execute a Restricted Grant Agreement between the City of Visalia and the California Department of Transportation, as well as any future amendments, for the North Visalia Beautification Project application submitted to the Clean California Local Grant Program through Resolution No. 2023-16; and

2. Appropriate $3,100,000 in grant funds, contingent upon award.

Adoption of the resolution will expedite the grant process should the City of Visalia be successful in securing the grant. The grant application guidelines recommend passing the resolution as part of the application.

Background Discussion:

City Council approved on April 17, 2023 authorization for the City Manager to submit a grant application to the Clean California Local Grant Program, Cycle 2 Call for Projects, for the North Visalia Beautification Project.

Staff recommends adoption of the attached resolution, authorizing the City Manager to enter into an agreement with the California Department of Transportation (Caltrans) for this specific project in order to reduce the length of time between receiving notice of award of grant funds and execution of the grant agreement.

Although, the resolution is not required to be submitted along with the project application to the Clean CA Local Grant Program, it is recommended that local agencies obtain an approved resolution prior to receiving notice of award. Notice of award of grant funds is anticipated to be announced in Visalia City Council Printed on 5/12/2023Page 1 of 5
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to receiving notice of award. Notice of award of grant funds is anticipated to be announced in September 2023 for Cycle 2 of the Clean CA Local Grant Program. Caltrans staff noted that in Cycle 1, it took an average of six months to execute a Restricted Grant agreement between an awardee and Caltrans mainly due to the amount of time it can take an awardee to obtain an approved resolution. An adopted resolution is required for execution of the grant agreement. Project funds will not become available for expenditure until the Restricted Grant Agreement has been executed.

Moreover, for projects that do receive an award of funds, there is an accelerated timeframe to complete the project. If awarded, project funds must be expended by June 30, 2026. Also, the project must be complete and open to the public by that date. According to the Clean CA Local Grant Program Guidelines, no time extensions will be granted beyond June 30, 2026. Given the project size, this is as an aggressive project schedule to meet. In consideration that time extensions will not be permitted, any delays in implementing the project may significantly impact the overall project schedule and delivery of the project by June 30, 2026.

In addition, staff recommends the appropriation of grant funds, contingent upon grant award, to allow staff to begin project eligible activities immediately following execution of the grant agreement.

By not having the resolution ready upon receiving notice of award and appropriating grant funds, this will add several months to the project schedule. Therefore, staff recommends adoption of the resolution and appropriation of grant funds, contingent upon grant award, Proposed Project:

Staff will submit a project application to the Clean CA Local Grant Program for the North Visalia Beautification project. This project will focus on beautification improvements along Court Street and NE 3rd Avenue from State Route 63 (Dinuba Boulevard) to Houston Avenue. The proposed improvements will include the following:
· Intersection Bulb outs using community supported pavement artwork. · Landscaped Medians or enhanced parkways to beautify the corridors and reduce the heat island affect.
· Street lighting to enhance the public space.
· Improve aesthetics to help transform NE 3rd and Court Streets as entrance gateways from Houston Avenue to State Route 63 (Dinuba Boulevard)/Oval Park; increasing livability, mobility, and visual amenities for residences and small businesses around and along these two neighborhood corridors.
· Educational and clean up events to inform the public of proper waste disposal and to keep the neighborhoods clean and welcoming.

Grant Program Criteria:

The Clean California Local Grant Program (CCLGP) announced a Call for Projects in February 2023 for Cycle 2 of the grant program. Applications are due by May 31, 2023. The deadline for submission was extended from April 28, 2023 to May 31, 2023.

The CCLGP is a competitive statewide program administered by the California Department of Transportation (Caltrans) and is part of the nearly $1.1 billion Clean California initiative to remove litter and beautify public spaces. The grant program was established in 2021 through approval of Assembly Bill 149.

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The intent of the CCLGP is to achieve the following goals:
· Reduce the amount of waste and debris within public rights-of-way, pathways, parks, transit centers, and other public spaces.
· Enhance, rehabilitate, restore, or install measures to beautify and improve public spaces and mitigate the urban heat island effect.
· Enhance public health, cultural connections, and community placemaking by improving public spaces for walking and recreation.
· Advance equity for underserved communities.

For the current round of funding available for Cycle 2, approximately $100M is available for award.

Each grant awarded by the CCLGP has a maximum limit of $5M and projects must be completed by June 30, 2026. Applications are due by May 31, 2023, with Caltrans expected to announce the award of funds in September of 2023.

For projects to be considered eligible to submit to the CCLGP, project locations must meet the following conditions: on public property, under the applicant’sjurisdiction, partially or fully located in an underserved community.

The proposed project meets the grant criteria for the project site being located in an underserved community. The grant guidelines stipulate that at least 75% of the population surrounding the project site must be underserved. Utilizing the online tools provided by the grant to determine if a project site is within an underserved community, the project site was deemed to be fully in an underserved community.

Fiscal Impact:

The maximum amount of funds that may be requested per application is $5M. However, applications requesting $3M or less may be more competitive. Staff previously estimated and stated in the prior staff report presented to Council on April 17, 2023 that the estimated project cost was $3M. Staff has refined the project scope and finalized the cost estimate. The total estimated project cost has been updated. The total estimated cost for the North Visalia Beautification Project is $3.1M.

The CCLGP has a local match requirement and ranges from 0% to 50%. The local match percentage is based on the severity of disadvantage of all the census tracts with a ½ mile radius of the perimeter of the project site. The more disadvantaged the underserved community is, the lower the amount of local match contribution.

For the proposed project, the local match requirement is 0% based on the average median incomes within the surrounding community being less than $55,996 (source: Census Track Level Data from the 2017-2021 American Community Survey 5-year Estimates). No additional points will be awarded for local match contributions that exceed the minimum required match.

Following is an updated summary cost breakdown for the project. The grant application requested the total cost of the project be fully funded by the grant program.

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Clean CA Grant - North Visalia Beautification Project
Funding Source
Clean CA Grant $3,100,000
Total Project Funding $3,100,000
North Visalia Beautification Project - Budget
Design & Project Management $330,000
Construction $2,605,000
Inspection $30,000
Construction Management $85,000
Materials Testing $15,000
Non-Infrastructure Component (Educational & Clean up events)$35,000 Estimated North Visalia Beautification Project Cost$3,100,000 The addition of these new infrastructure elements will require future required maintenance, i.e. added landscaping, streetlights, and public art. Through further refinement of the project scope and estimate see below an updated approximate annual maintenance cost based on a 20-year project life:

Clean CA Grant - North Visalia Beautification Project - Annual Maintenance Cost North Visalia Beautification Project - Maintenance
Trees and Landscaping (Approximately 140 Trees, 26,000 Sqft for shrubs & 2 -water meters & electricity)
$9,600
Pavement Maintenance Reduction (Removal of 27,000 Sqft of AC)($3,480) Striping, signage and Markings $1,000
Art Work $1,500
Sub Total $8,620
Contingency 20% - Material increase - Unforeseen$1,724
Estimated North Visalia Beautification Project Annual Maintenance Cost$10,344 Prior Council Action:

April 17, 2023
Authorized the City Manager to submit a grant application to the Clean California Local Grant Program.

Alternatives:

Do not adopt the resolution and/or the appropriation of funds thus, staff will need to return to Council after receiving notice of award.

Recommended Motion (and Alternative Motions if expected):

I move to adopt Resolution 2023-16 to authorize the City Manager to execute a Restricted Grant Visalia City Council Printed on 5/12/2023Page 4 of 5
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I move to adopt Resolution 2023-16 to authorize the City Manager to execute a Restricted Grant Agreement between the City of Visalia and Caltrans, as well as any future amendments for the North Visalia Beautification Project and appropriate $3.1M, contingent upon grant award.

Environmental Assessment Status:

To be determined during preliminary engineering phase.

CEQA Review:

To be determined during preliminary engineering phase.

Attachments:

1. Resolution 2023-16

2. Proposed Project Location Map
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Resolution No: 2023-xx

RESOLUTION OF THE CITY OF VISALIA

AUTHORIZING THE CITY MANAGER TO EXECUTE AGREEMENTS WITH THE CALIFORNIA

DEPARTMENT OF TRANSPORTATION FOR THE NORTH VISALI A BEAUTIFICATION

PROJECT AS PART OF THE CLEAN CALIFORNIA LOCAL GRANT PROGRAM

WHEREAS, the City of Visalia is eligible to receive State funding for certain transportation related work through the California Department of Transportation; and

WHEREAS, the City of Visalia will apply for $3.1M from the California Depar tment of Transportation as part of the Clean California Local Grant Program for the North Visalia Beautification project; and

WHEREAS, a Restricted Grant Agreement is needed to be executed with the California Department of Transportation before such funds can be claimed through the Clean California Local Grant Program; and

WHEREAS, the City of Visalia wishes to delegate authorization to the execute these agreements and any amendments thereto; and

WHEREAS, grant funds, contingent on award, will need to be expended by June 30, 2026; and

WHEREAS, the execution of this resolution will expedite the project schedule in order to meet the funding deadline as established by the California Department of Transportation Clean CA grant program; and

NOW, THEREFORE BE IT RESOLVED, the City Council of the City of Visalia hereby authorizes the City Manager, or designee, to execute all Restricted Grant Agreements and any amendments thereto with the California Department of Transportation for the Clean California Local Grant Program.

PASSED AND ADOPTED: May 15, 2023

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City of Visalia ‐ Clean CA Grant Opportunity
Oval
Park
Wittman
Center
Proposed Project Location
Project Routes Identified in City ATP Plan
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707 W. Acequia
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File #: 23-0184 Agenda Date: 5/15/2023 Agenda #: 10.

Agenda Item Wording:

Approve Resolution 2023-14, designating the positions of City Manager, Assistant City Manager, and Finance Director as authorized agents for official correspondence with FEMA and CalOES.

Deadline for Action: 5/15/2023
Submitting Department: Fire Department
Contact Name and Phone Number: Dan Griswold, 713-4220
Department Recommendation:

Staff recommends City Council approve Resolution 2023-14 designating the positions of City Manager, Assistant City Manager, and Finance Director as authorized agents for official correspondence with the Federal Emergency Management Agency (FEMA) and the California Governor’s Office of Emergency Services (CalOES).

Background Discussion:

The Federal Emergency Management Agency and CalOES require each local government agency to designate authorized agents for the purpose of filing official correspondence. The designation allows for a timely exchange of information during times of disaster and during the hazard mitigation and recovery grant processes. The City of Visalia is designating the positions of City Manager, currently Leslie Caviglia, Assistant City Manager, currently Nick Mascia, and Finance Director, currently Renee Nagel as authorized agents for this requirement. Staff added the Finance Director position as an authorized agent in this resolution because the person in this position is responsible for much of the financial official correspondence between the City of Visalia, FEMA, and CalOES. The California Governor’sOffice of Emergency Services requires this process be approved by a governing body through resolution. Once approved the designation is valid for three years.

Fiscal Impact:

N/A
Prior Council Action: City Council approved Resolution 2018-56 designating the positing of City Manager and Assistant City Manager as authorized agents at the regular city council meeting on November 5, 2018.

Other: N/A
Alternatives: City Council can choose to modify, or deny, the above designations.

Recommended Motion (and Alternative Motions if expected):

I move to approve Resolution 2023-14, designating the positions of City Manager, Assistant City Manager, and Finance Director as authorized agents for official correspondence with FEMA and Visalia City Council Printed on 5/12/2023Page 1 of 2
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File #: 23-0184 Agenda Date: 5/15/2023 Agenda #: 10.

Manager, and Finance Director as authorized agents for official correspondence with FEMA and CalOES.

Environmental Assessment Status: N/A
CEQA Review: N/A
Attachments: CalOES form OES-FPD 130, Designation of Applicant’s Agent Resolution for Non- State Agencies and City of Visalia Resolution 2023-14.

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City of Visalia
Agenda Item Transmittal
Meeting Date: 11/ 5/ 2018
Agenda Item Number ( Assigned by City Clerk): 7.

Agenda Item Wording: Approve Resolution 2018- 56, designating the position of City Manager and Assistant City Manager as authorized agents for official correspondence with FEMA and CalOES.

Deadline for Action: 11/ 5/ 2018
Submitting Department: Fire Department
Contact Name and Phone Number:

Danny Wristen, Battalion Chief , 713- 4056; danny. wristen@visalia. city Doug McBee, Fire Chief, 713- 4220; doug. mcbee@visalia. city Department Recommendation: That the City Council approve Resolution 2018- 56 designating the position of City Manager and the position of Assistant City Manager as authorized agents for official correspondence with the Federal Emergency Management Agency ( FEMA) and the California Governor’ s Office of Emergency Services ( CalOES).

Summary/ Background Discussion: FEMA and CalOES require that each local government agency have designated authorized agents for the purpose of filing official correspondence. The designation allows for a timely exchange of information during times of disaster or during the process of hazard mitigation grants or recovery grants. The City of Visalia has designated two positions as Authorized Agents, City Manager ( Randy Groom) and Assistant City Manager ( Leslie Caviglia.) Cal OES requires this process be approved by a governing body through resolution.

Fiscal Impact: None
Prior Council Action: NA.

Committee/ Commission Review and Action: NA
Attachments: City Resolution
Cal OES Form 130 – Designation of Applicant’ s Agent Resolution Recommended Motion ( and Alternative Motions if expected): Move to approve Resolution 2018- 56, designating the positions of City Manager and Assistant City Manager as authorized agents for official correspondence with FEMA and CalOES.

Copies of this report have been provided to:
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276

STATEOFCALIFORNIA
GOVERNOR’SOFFICEOFEMERGENCYSERVICES CalOESID No: ______________________ CalOES130

DESIGNATIONOFAPPLICANT'SAGENTRESOLUTION

FORNON-STATEAGENCIES

BEIT RESOLVEDBY THE OFTHE
GoverningBody) (Nameof Applicant)

THAT , OR
Title of AuthorizedAgent)
OR
TitleofAuthorizedAgent)
TitleofAuthorizedAgent)
isherebyauthorizedto executefor andonbehalfof the , apublicentity Nameof Applicant)
establishedunderthelawsof theStateof California, thisapplicationandtofile it withtheCaliforniaGovernor’sOfficeof Emergency Servicesfor thepurposeof obtainingcertainfederalfinancialassistanceunderPublicLaw93-288asamendedbytheRobertT. Stafford DisasterReliefandEmergencyAssistanceActof 1988, and/orstatefinancialassistanceundertheCaliforniaDisasterAssistanceAct.

THATthe ________________________________________________, apublicentityestablishedunderthelawsof theStateof California, Nameof Applicant)
herebyauthorizesitsagent(s) to providetotheGovernor’sOfficeof EmergencyServicesfor all matterspertainingtosuchstatedisaster assistancetheassurancesandagreementsrequired.

Pleasechecktheappropriateboxbelow:

Thisisauniversalresolutionandis effectivefor all openandfuturedisastersupto three (3) yearsfollowingthedateof approvalbelow.

Thisisadisasterspecificresolutionandiseffectivefor onlydisasternumber(s) ________________________ Passedandapprovedthis dayof , 20
NameandTitleofGoverningBodyRepresentative)
NameandTitleofGoverningBodyRepresentative)
NameandTitleofGoverningBodyRepresentative)

CERTIFICATION
I, , dulyappointedand of
Name) ( Title)
doherebycertifythattheaboveisatrueandcorrectcopyof a
Nameof Applicant)
Resolutionpassedandapprovedbythe of the
GoverningBody) ( NameofApplicant)
onthe dayof , 20 .

Signature) ( Title)
CalOES130 (Rev.9/13) Page1 107-82954
City Council City of Visalia
City Manager
AssistantCity Manager
City of Visalia
City of Visalia
X
5th November 18
WarrenGubler, Mayor
Bob Link, Vice Mayor
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STATEOFCALIFORNIA
GOVERNOR’SOFFICEOFEMERGENCYSERVICES
CalOES130 - Instructions
CalOESForm130Instructions
A Designationof Applicant’sAgentResolutionfor Non-StateAgenciesis requiredof all Applicantsto beeligibleto receivefunding. A newresolutionmustbesubmittedif a previouslysubmittedResolutionis olderthanthree (3) years from thelastdateof approval, isinvalidor hasnot beensubmitted.

WhencompletingtheCalOESForm130, Applicantsshouldfill in theblanksonpage1. Theblanksaretobefilled in as follows:

ResolutionSection:

GoverningBody: ThisisthegroupresponsibleforappointingandapprovingtheAuthorizedAgents.

Examplesinclude: Boardof Directors, City Council, Boardof Supervisors, Boardof Education, etc.

Nameof Applicant: Thepublicentityestablishedunderthelawsof theStateof California. Examplesinclude: School District, Officeof Education, City, CountyorNon-profitagencythathasappliedfor thegrant, suchas: Cityof SanDiego, SacramentoCounty, BurbankUnifiedSchoolDistrict, NapaCountyOfficeof Education, UniversitySouthernCalifornia.

AuthorizedAgent: ThesearetheindividualsthatareauthorizedbytheGoverningBodyto engagewiththeFederalEmergency ManagementAgencyandtheGovernor’sOfficeof EmergencyServicesregardinggrantsappliedfor bytheApplicant. Thereare twowaysof completingthissection:

1. TitlesOnly: If theGoverningBodysochooses, thetitlesof theAuthorizedAgentswouldbeenteredhere, not theirnames. Thisallowsthedocumenttoremainvalid (for 3 years) if anAuthorizedAgentleavestheposition andis replacedbyanotherindividualin thesametitle. If “TitlesOnly” isthechosenmethod, thisdocument mustbeaccompaniedbyacoverletternamingtheAuthorizedAgentsby nameandtitle. Thiscoverlettercan becompletedbyanyauthorizedpersonwithintheagencyanddoesnotrequiretheGoverningBody’ssignature.

2. NamesandTitles: If theGoverningBodysochooses, thenamesandtitlesof theAuthorizedAgentswouldbe listed. A newCalOESForm130will berequiredif anyof theAuthorizedAgentsarereplaced, leavetheposition listedonthedocumentortheirtitlechanges.

GoverningBodyRepresentative: Thesearethenamesandtitlesof theapprovingBoardMembers.

Examplesinclude: Chairmanof theBoard, Director, Superintendent, etc. Thenamesandtitlescannotbeoneof the designatedAuthorizedAgents, andaminimumof twoormoreapprovingboardmembersneedto belisted.

CertificationSection:

NameandTitle: Thisistheindividualthatwasin attendanceandrecordedtheResolutioncreationandapproval.

Examplesinclude: City Clerk, SecretarytotheBoardof Directors, CountyClerk, etc. Thispersoncannotbeoneof the designatedAuthorizedAgentsorApprovingBoardMember (if apersonholdstwopositionssuchasCityManagerand SecretarytotheBoardandtheCityManageristobelistedasanAuthorizedAgent, thenthesamepersonholdingthe SecretarypositionwouldsignthedocumentasSecretaryto theBoard (notCity Manager) toeliminate “Self Certification.”
CalOES130 (Rev.9/13) Page2 187-
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RESOLUTION 2018 -

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VISALIA

DESIGNATING AUTHORIZED AGENTS

FOR OFFICIAL CORRESPONDENCE WITH FEMA AND CALOES
WHEREAS, the Federal Emergency Management Agency ( FEMA) and the California Governor’ s Office of Emergency Services ( CalOES) require each local government agency have designated authorized agents for the purpose of filing official correspondence; and
WHEREAS, the designation allows for timely exchange of information during times of disaster or during the process of hazard mitigation grants or recovery grants; and WHEREAS, the City of Visalia desires to designate two positions as authorized agents, the City Manager and the Assistant City Manager; and WHEREAS, CalOES requires this process be approved by a governing body through resolution
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Visalia hereby designates the position of City Manager and the position of Assistant City Manager as authorized agents for official correspondence with FEMA and CalOES.

PASSED AND ADOPTED: November 5, 2018 RANDY GROOM, CITY CLERK

STATE OF CALIFORNIA)
COUNTY OF TULARE ) ss.

CITY OF VISALIA )
I, Randy Groom, City Clerk of the City of Visalia, certify the foregoing is the full and true Resolution 2018- passed and adopted by the Council of the City of Visalia at a regular meeting held on November 5, 2018.

Dated: November 5, 2018 RANDY GROOM, CITY CLERK
By Michelle Nicholson, Chief Deputy City Clerk
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RESOLUTION 2023-14

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VISALIA

DESIGNATING AUTHORIZED AGENTS FOR

OFFICIAL CORRESPONDENCE WITH FEMA AND CALOES

WHEREAS, the Federal Emergency Management Agency (FEMA) and the California Governor’s Office of Emergency Services (CalOES) require each local government agency have designated authorized agents for the purpose of filing official correspondence; and WHEREAS, the designation allows for timely exchange of information during times of disaster and during hazard mitigation and recovery grant processes; and WHEREAS, the City of Visalia desires to designate three positions as authorized agents, the City Manager, the Assistant City Manager, and the Finance Director; and WHEREAS, CalOES requires this process be approved by a governing body through resolution
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Visalia hereby designates the positions of City Manager, Assistant City Manager, and Finance Director as authorized agents for official correspondence with FEMA and CalOES.

PASSED AND ADOPTED: May 15, 2023 MICHELLE NICHOLSON, CITY CLERK

STATE OF CALIFORNIA)
COUNTY OF TULARE ) ss.

CITY OF VISALIA )

I, Michelle Nicholson, City Clerk of the City of Visalia, certify the foregoing is the full and true Resolution 2023-14 passed and adopted by the Council of the City of Visalia at a regular meeting held on May 15, 2023.

Dated: May 15, 2023 MICHELLE NICHOLSON, CITY CLERK

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Visalia, CA 93291
File #: 23-0203 Agenda Date: 5/15/2023 Agenda #: 11.

Agenda Item Wording:

Authorize changes to terms and conditions of employment with all represented and unrepresented City of Visalia employee bargaining groups.

Deadline for Action: 5/15/2023
Submitting Department: Administration
Contact Name and Phone Number: Leslie Caviglia; 559.713.4317 Department Recommendation: Authorize changes to terms and conditions of employment with all represented and unrepresented employee bargaining groups as outlined below.

Background Discussion:

In 2021 the City entered into 3-year agreements with all employee bargaining units for the term of July 1, 2021 through June 30, 2024. Since the agreements were approved, there have been significant increases in inflation and costs of living (food, gas, utilities, etc.) that have negatively impacted employees. Additionally, the City of Visalia has had increased difficulty in recruiting and retaining quality employees. The struggle to attract applicants for jobs results in ongoing position vacancies throughout the City which further impacts existing employee workloads. At the same time, the City continues to have a very positive financial outlook with a higher than anticipated budget surplus.

To provide economic relief to employees, improve recruitment and retention efforts, and recognize valued employees, at a closed session meeting on April 17, 2023, City Council authorized City negotiators to reopen discussions on the subject of wages with all represented and unrepresented bargaining groups.

After meetings with group representatives, tentative agreements were reached with all bargaining groups to provide all full-time employees a 2.5% salary increase effective the pay period that includes July 1, 2023, and a one-time $1,000 lump sum payment effective the pay period following Council approval. Agreement was also reached with Bargaining Group M (Miscellaneous Employees) on revised contract language relating to CalPERS contributions and to provide CalPERS defined PEPRA employees an additional $750 one-time lump sum payment effective the pay period following Council approval.

Fiscal Impact:

Total cost of the 2.5% wage increase is $2,006,220, $1,256, 941 of which comes from the General Fund. Total cost of the one-time lump sum payments for full-time employees is $794,250.

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File #: 23-0203 Agenda Date: 5/15/2023 Agenda #: 11.

Prior Council Action: Closed session 04/17/2023 and 05/01/2023 Other: n/a
Alternatives: Provide alternate direction
Recommended Motion (and Alternative Motions if expected):

I move to authorize changes to terms and conditions of employment with all represented and unrepresented bargaining groups as outlined in the staff report. ..end Environmental Assessment Status: n/a
CEQA Review: n/a
Attachments: Click or tap here to enter text.

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File #: 23-0177 Agenda Date: 5/15/2023 Agenda #: 12.

Agenda Item Wording:

Authorize for the City Manager to enter into a five (5) year Cooperative Agreement with the National Park Service (NPS) to continue in-park Sequoia Shuttle service, in conjunction with the City of Visalia’sGateway Sequoia Shuttle service, for an annual contract amount received of $1,784,123, to be adjusted annually by Consumer Price Index (CPI), Producer Price Index (PPI), and any requested service adjustments and related costs.

Deadline for Action: 5/25/2023 - To account for preparation costs for 2023 season Submitting Department: Administration - Transit
Contact Name and Phone Number:

Caleb Bowman, Transit Management Analyst, [email protected], (559)713-4794 Angelina DeRossett, Transit Manager, [email protected], (559) 713-4591 Nick Mascia, Assistant City Manager, [email protected], (559) 713-4323 Department Recommendation:

Staff recommends that the City Council authorize the City Manager to enter into a five (5) year Cooperative Agreement with the National Park Service (NPS) to continue annual operational services of the Sequoia Shuttle within the park for an annual amount of $1,784,123 paid to the City. This fee will be adjusted annually by Consumer Price Index (CPI), Producer Price Index (PPI), and any requested service adjustments and related costs.

Summary:

The attached agreement covers the operation of the Sequoia Shuttle within the Sequoia National Park by the City of Visalia on behalf of the National Park Service (NPS). The Transit Division provides this service and works with Transdev, who has acquired First Transit in March 2023, the City’stransit operations contractor, operating under a Cooperative Agreement with the NPS. Under the authority of this agreement, the City and NPS will work together annually to develop each season’sservice plan and make small adjustments to services as needed and agreed upon by both parties. There will only be minor adjustments to the routes, schedules and inflation increase, based on Consumer Price Index (CPI), Producer Price Index (PPI) and operations contract rate increases, to the corresponding rates annually. The agreement will otherwise remain unchanged for the duration of the five years.

Background Discussion:

The Sequoia Internal Shuttle began service in 2007 and has operated for 16 seasons. Each multi- year agreement details the services for the first year of the agreement. During the agreement term, the schedules and budget for each successive year are agreed upon through a collaborative process between the City and the NPS and memorialized as amendments to the agreement. Under the contract, the City provides all bus services including the lease of all buses used and the provision of Visalia City Council Printed on 5/12/2023Page 1 of 4
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trailers for temporary driver housing during the season.

The Sequoia Internal Shuttle summer service operates five routes serving all the major road- accessible destinations in the Giant Forest, including Crescent Meadow, Dorst Creek Campground, the General Sherman Tree, the Giant Forest Museum, Lodgepole Campground including the Market and Visitor Center, Moro Rock, Wolverton, and Wuksachi Lodge. Summer routes typically operate the Thursday before Memorial Day weekend through the Sunday after Labor Day. Also included is a winter service during Thanksgiving, usually operated between Thanksgiving Day through that Sunday, and Christmas Holidays, usually operated between Christmas Eve through New Year’sDay.

Staff has in the past, will continue to coordinate with NPS to accommodate the service when the Sequoia National Park is open to the public. The City of Visalia can terminate this contract upon sending NPS written notification of the reasons for such termination and proper notice of the effective date.

There is limited parking within the park at major attractions and trail heads. Through the use of the internal shuttle, visitors are able to park all day and visit the park attractions reducing stress of parking at each attraction, traffic, and reducing the emissions emitted within the park creating a more enjoyable visitor experience.

The cost of the internal shuttle service is paid in full by NPS and offered to the public free of charge.

During the 2022 season, the internal shuttle provided an average of 6,584 rides per day with a season total of 717,676 rides, 23.66% below 2019’sridership but 106% above 2021’sridership. A Visalia City Council Printed on 5/12/2023Page 2 of 4
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season total of 717,676 rides, 23.66% below 2019’sridership but 106% above 2021’sridership. A summary of the 2022 Internal Shuttle Ridership by Month and Route is shown below, Table 1.

Table 1
2022 Internal Shuttle Ridership Summary
Rt. 1 Giant
Forest
Rt. 2 Moro
Rock
Rt. 3
Wuksachi
Rt. 4
Wolverton
TOTAL Daily
Average
by
Month
May 27,424 27,885 4,355 8,381 68,045 11,341
June 78,152 71,738 5,628 26,223 181,741 6,058
July 100,101 102,936 12,326 28,460 243,823 7,865
August 70,386 64,811 6,162 21,178 162,537 5,243
September 26,208 22,283 4,039 9,000 61,530 5,594
Total 302,271 289,653 32,510 93,242 717,676 6,584
On Thursday May 10th, 2023, NPS provided Transit that the Sequoia National Park would not be open until at least early June, pushing the start of our service start to mid-June t the earliest. This is not uncommon for NPS to authorize service and then it be canceled or reduced due to weather, fires, or other unforeseen circumstances. These concerns are brought up before the start of each service.

Transit staff seeks approval from NPS for any and all costs incurred after the contract service bids closes will be reimbursable under this agreement, not to exceed the annual budget. Approval by NPS for these charges are documented and filed along with the annual budget approval.

NPS reimburses the City for the entire cost to operate the internal shuttle service monthly, which provides a great connection to the external shuttle the City operates from Visalia. Transit staff requests reimbursement based on financial reports for Transit’s Sequoia Internal Shuttle service, 4553, that show the actual expenditures incurred in the reimbursement period as outlined below in Table 2. At the end of each season, staff pulls a year-to-date report to ensure all expenditures incurred have been reimbursed. If it is found that some costs have not been included in previous reimbursements, staff include those charges in the last reimbursement. Due to the Federal Fiscal Year (FFY) ending in September, NPS asks that the City estimate and request reimbursement for the Winter Service, Thanksgiving and Christmas, prior to October 1. Transit staff estimates the cost of the Winter service, plus 15% contingency, and request reimbursement prior to the service being performed. If not all the funds are exhausted during the Winter services, the park is credited back those funds in the following season.

Table 2
Reimbursement Schedule
Reimb. Period Jan. - May June July Aug. - Sept. Oct.-Dec.

Reimb. Reqd. June July Aug. Sept. Sept.

It is estimated that approximately $1,784,123 will be needed to operate the 2023 internal Sequoia Shuttle. This amount is $120,000 higher than last year as a result of the requested increase of internal route frequency, possible service to Dorst Campground, Visalia’sOperations & Maintenance Contract cost increase, and an inflationary increase of 2.5% for leases and overhead allowed under Visalia City Council Printed on 5/12/2023Page 3 of 4
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File #: 23-0177 Agenda Date: 5/15/2023 Agenda #: 12.

Contract cost increase, and an inflationary increase of 2.5% for leases and overhead allowed under the previous contract. Moving forward, the Transit Division will base all increase off the CPI-U for service and correlating PPI for product as published by the Bureau of Labor Statistics.

Fiscal Impact:

The Sequoia Internal Shuttle service is covered 100% by the contract payments from the National Park Service (NPS) which is placed in the Shuttle Internal Revenue line, account code 4553-44503.

Transit requests reimbursement electronically monthly though the Federal Government website ASAP.gov and payment is made electronically within 24-hours. Transit only requests reimbursement for all costs incurred by the operation of the Sequoia Internal Service.

Prior Council Action:

March 12, 2018: Approval of the last 5-year contract for Sequoia Internal Shuttle services.

Other:

None.

Alternatives:

None.

Recommended Motion (and Alternative Motions if expected):
.recommendation
I move to authorize the City Manager to enter into a five (5) year Cooperative Agreement with the National Park Service (NPS) for an annual amount received of $1,784,123 to be adjusted annually as described within the report.

Environmental Assessment Status:

None.

CEQA Review:

None required.

Attachments:
1) P23AC00523 City of Visalia SEKI Shuttle
a. DRAFT Contract between the City of Visalia and the United States Department of the Interior.
b. The Sequoia Internal Shuttle 2023 Budget and Schedule as approved by the NPS leadership team.

Visalia City Council Printed on 5/12/2023Page 4 of 4
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Cooperative Agreement P23AC00523

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Cooperative Agreement P23AC00523
Between

THE UNITED STATES DEPARTMENT OF THE INTERIOR

NATIONAL PARK SERVICE
AND
THE CITY OF VISALIA, CALIFORNIA (“City” or “Recipient”)

Table of Contents

I. LEGAL AUTHORITY .......................................................................................................... 2 II. PROJECT BACKGROUND, PERFORMANCE GOALS, AND OBJECTIVES ................ 2 III. PUBLIC PURPOSE ............................................................................................................... 4 IV. STATEMENT OF WORK .................................................................................................... 4 V. RESPONSIBILITIES OF THE PARTIES ............................................................................ 6 VI. COST-SHARE REQUIREMENT ......................................................................................... 7 VII. PRE-AWARD COSTS .......................................................................................................... 7 VIII. AWARD AND PAYMENT .................................................................................................. 7 IX. REPORTS AND/OR OUTPUTS/OUTCOMES ................................................................... 9 X. AWARD-SPECIFIC TERMS AND CONDITIONS............................................................. 9 XI. STANDARD TERMS AND CONDITIONS ...................................................................... 12

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I. LEGAL AUTHORITY

National Park Service (NPS) enters into this Agreement pursuant to:

54 USC §101702(a), the Secretary of the Interior may enter into a cooperative agreement that involves the transfer of Service appropriated funds to a State, local, or tribal government or other public entity, an educational institution, or a private nonprofit organization to carry out public purposes of a Service program.

II. PROJECT BACKGROUND, PERFORMANCE GOALS, AND OBJECTIVES

A. Background

The City is a local government located in California's Central Valley. The City is responsible for the development and maintenance of safe, efficient, economic transportation systems that are cost-effective, energy-efficient, environmentally sound, and responsive to the diverse needs and values of the people of Visalia. Some of the challenges faced by the City and the Sequoia and Kings Canyon National Parks ("Park") include some of the poorest air quality in the nation, increasing visitation and traffic, and a road system that was not originally designed for its current level of use.

The San Joaquin Valley, Tulare County, and the Park are recognized as some of the most polluted areas in the United States with auto emissions being a prominent source of air pollutants. The San Joaquin Valley, west of the Sierra Nevada, is a trap for air pollutants originating in the valley as well as pollutants from the cities along the central California coast that are carried in by prevailing westerly winds. The Clean Air Act and the NPS Organic Act provide mandates for protecting air resources in national parks. In Section 160 of the Clean Air Act, Congress stated that one of the purposes of the Act is to "preserve, protect and enhance the air quality in national parks..." The City and the Park share the common objectives of mitigating traffic congestion and air pollution by providing enhanced public transportation.

The Park has between 1.7 and 1.9 million visitors a year arriving by private vehicles and commercial tour buses, a number that has increased by about 22% since 2007, the first year of the shuttle program. The Generals Highway, a National Register of Historic Places eligible property, is the only road into Sequoia National Park from the south main entrance. This road was originally designed in the 1920's and early 1930's for smaller and fewer vehicles and it is becoming increasingly difficult to maintain proper traffic flow and safety for Park visitors to access and enjoy the world-renowned Giant Forest sequoia grove. The qualities of Generals Highway, paired with the increased visitation, are having an impact on public safety, resource protection, and the ability for visitor demand to be satisfied.

In 2007, a total of 137,576 visitors rode the park shuttle. During the 2019 season of Memorial Day weekend through Labor Day, 940,164 passengers rode the internal shuttle, and 6,175 passengers rode the external shuttle. Assuming an average of three people per personal vehicle, shuttle use reduced private vehicles circulating in the Giant Forest area by 288
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an estimated 313,388 trips, and the external shuttle equated to 2,058 fewer vehicles entering the park during peak season. Since 2008, the second-year service was offered when 147,556 people rode the internal shuttle, greenhouse gas emissions associated with park visitation have been significantly below what they would have been if all the shuttle riders instead rode in automobiles. Due to steadily increasing ridership up 684% since 2007 — total vehicle miles traveled were reduced by roughly 977,000 in 2019. By comparison, if all park visitors who used the shuttle instead drove their own car, emissions associated with park visitation would have increased. Note that the decrease in overall vehicle miles traveled and emissions reflect increased shuttle ridership, improved fuel efficiency of buses, and decreased emissions from the use of hybrid buses. The proposal to continue to provide a transit system, particularly within the popular Giant Forest area, addresses these issues of air quality, public safety, and visitor enjoyment.

The City operates the Gateway Shuttle, which provides transportation to the Park, outside of this Cooperative Agreement. The City runs this shuttle as a non-profit service, providing unique access to the Park during the months of shuttle operation. This service includes ADA- compliant buses that provide a way to visit the park for people with disabilities. It is subsidized, reasonable-cost transportation for those without vehicles, those with disabilities, and those who do not drive. The Gateway Shuttle service enhances public access to Sequoia and links to the internal shuttle system.

This project will provide transportation services in the Giant Forest area of Sequoia National Park during peak visitation periods. Buses will connect Lodgepole Visitor Center and Campground, Wuksachi Lodge, Dorst Campground, Giant Forest Museum, the General Sherman Tree, Wolverton, Crescent Meadow and Moro Rock. The Park and the City will collaborate in areas of traffic management, visitor information, resource protection, and programs to encourage park visitation by youth and minority groups in gateway communities. Because the shuttle system is paid for by transportation fees collected at entrance stations, shuttle riders will not pay a separate user fee.

B. Performance Goals

• Provide seamless transportation both to and within the park – particularly for visitors with disabilities and those who do not drive;
• Provide visitors access to park attractions at which inadequate parking supply exists (and thus alleviate the need to construct additional parking or redesign historic roadways in sensitive environments);
• Encourage tourism, enhance local economic development, and provide local employment opportunities; and
• Reduce vehicle miles traveled (VMT) and improve air quality

C. Project Objective

• Provide a safe and efficient transit system in the Giant Forest area of Sequoia National Park during peak visitation periods (defined in Article IV – Statement of Work).

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III. PUBLIC PURPOSE
The public purpose of this cooperative agreement is to provide a safe and efficient system of transportation within the Park, complimented by seamless service bringing visitors from Visalia to the park via the Gateway Shuttle, to benefit gateway communities and the visiting public.

This shuttle service will:
• Accommodates the needs of those with disabilities, those without cars, and those who prefer not to drive when other options exist;
• Contributes to better air quality in the Central Valley by reducing overall emissions of CO2 and other greenhouse gases associated with private vehicle-based national park tourism;
• Enhances the visitor experience by relieving automobile congestion at key park destinations;
• Enhanced visitor enjoyment by providing much-improved opportunities for visitors to access and enjoy the park's trail system;
• Improves public safety through the reduction of vehicles on the road during the peak summer months;
• Provides seasonal employment opportunities to local students and residents; and • Indirectly benefits future generations by reducing impacts on natural and cultural resources caused by excess automobile traffic.

IV. STATEMENT OF WORK

A. The City will:

1. Collaboratively undertake a project titled "Shuttle Service for the Giant Forest Area in Sequoia National Park" as described throughout this Agreement.

2. Collaborate with NPS staff in training the City's drivers regarding NPS values and the preservation of park resources.

3. Provide all shuttle buses and support vehicles necessary for a shuttle operation within the Giant Forest area that includes the General Sherman Tree, Wuksachi Lodge, Lodgepole, Giant Forest Museum, Moro Rock, Crescent Meadow, Dorst Creek Campground, and Wolverton, during the following times:
a. Summer season from late May to mid-September
i. Approximately 110 days of service from the Thursday before Memorial Day to the Sunday after Labor Day
b. Winter holidays, including:
i. Thanksgiving
a. Four days of service from Thanksgiving Day through the Sunday after Thanksgiving
ii. Christmas Day and New Year’s Day
a. Nine, ten, eleven, or twelve days of service encompassing Christmas Day and New Year’s Day
iii. Martin Luther King Jr. Day Weekend
a. Two days of service on the Saturday and Sunday preceding Martin Luther King Jr. Day
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iv. Presidents Day Weekend
a. Two days of service on the Saturday and Sunday preceding Presidents Day c. Other dates as negotiated annually

4. Provide trained and courteous bus drivers and support staff in sufficient numbers necessary to maintain the shuttle operation, as detailed in the Schedule, Attachment B, within the Park. This will include mechanics, dispatchers, supervisors, and vehicle operators.

5. Provide equipment and supplies in support of shuttle operations. This will include maintenance facility tools and equipment, replacement parts, computer hardware and software, telephones, office equipment and furniture, and any other equipment and supplies necessary for this service.

6. Provide all appropriate communications equipment necessary to monitor the real-time service, ensure quality, and respond to on-vehicle situations and/or emergencies.

7. Provide a Personnel Organizational Chart, Personnel Handbook, Shuttle Fleet description with photos, Communications Equipment Specifications, a Safety Plan, and Quality Assurance Plan by May 1 each year.

8. Within 30 days after seasonal service ends, remove all shuttle-related items in the Maintenance Facility, including the maintenance bay, the office space, and the trailer pads, unless otherwise agreed to by mutual consent.

9. Participate, as appropriate, with the NPS in a wrap-up of the project following the completion of the shuttle service annually.

B. The NPS will:

1. Collaboratively undertake a project titled "Shuttle Service for the Giant Forest Area in Sequoia National Park" as described throughout this Agreement.

2. Provide an office within the Park to conduct administrative services for this shuttle system and one maintenance bay for the buses as well as provide a parking area for buses and shuttle operation employees.

3. Provide fuel and fueling infrastructure. This will include storage facilities for both gasoline and diesel adequate for the daily operational use of the shuttle buses and support vehicles.

4. Design and provide route structures and schedules within the Park. This will include bus stops and other waiting areas.

5. Make available for display or distribution on shuttle buses and at the bus stops promotional and passenger informational materials regarding the Park and its resources.

6. Present educational training to the City regarding the NPS values and preservation of park resources at least once annually.

7. Provide on-site project guidance and orientation and provide all interpretive materials for the City's use in city employee orientation.

8. Provide Park staff or similar who will manage parking, assist queuing visitors with using the shuttle, create and distribute educational materials, and offer interpretive opportunities for visitors at bus stops, waiting areas, and/or on shuttles or in visitor centers. At a minimum, during the summer operating season from May through September, the Accessible Sherman Tree Parking Lot (Lower Sherman) will be staffed daily from 10 am to 4 pm.
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9. Provide a minimum of twelve trailer pads or similar, to be reserved by the park, for the City Sequoia shuttle drivers at the established current rate for use as remote camp during the summer operating season as driver safety and efficiency and driver proximity to service routes. At the City's request, the ATR will request additional pads and, if possible, the NPS will make them available to the City. These pads will be in the Clover Creek, Lodgepole, or Wuksachi areas and will include sewer hookups and electrical service (e.g., hookups, battery solar solutions, etc.)

V. RESPONSIBILITIES OF THE PARTIES

A. The Recipient agrees to:

1. The Recipient shall carry out the Statement of Work in accordance with the terms and conditions stated herein. The Recipient shall adhere to Federal, state, and local laws, regulations, and codes, as applicable.

2. The Recipient agrees to carry out all tasks listed under the Statement of Work.

3. Recipients that issue subawards/subgrants are responsible for ensuring subaward/subgrant compliance with the requirements of 2 CFR 200. The Recipient must provide a list of selected subawardees/subgrantees and associated budgets to the NPS for review prior to making subawards/subgrants.

4. Recipients must select qualified subcontractors and submit documentation to the NPS showing competitive selection or justification for single-source procurement in accordance with 2 CFR 200.318 – 200.327.

B. The NPS agrees to:

1. Monitor and provide Federal oversight of activities performed under this Agreement.

Monitoring and oversight include review and approval of financial status and performance reports, payment requests, and tasks identified below. Additional monitoring activities may include site visits, conference calls, and other on-site or off-site monitoring activities. At the Recipient’s request, NPS may also provide technical assistance to the Recipient in support of the objectives of this agreement.

2. Substantial involvement is defined as significant NPS participation prior to and during the performance of a financial assistance agreement. Substantial involvement is a required component of a cooperative agreement and task agreements written under a master cooperative agreement. The following tasks and activities constitute NPS substantial involvement in this agreement:

a. NPS will employ a program manager (ATR) to work with the City, on-site shuttle supervisor(s), and shuttle drivers to accomplish the work. b. NPS will employ interpretive staff to assist shuttle bus riders at key locations, such as the General Sherman Tree Accessible Parking Lot (Lower Sherman). 292
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C. The Recipient and NPS, jointly, agree to:

1. Develop and employ together, to the extent practicable, operating procedures and standards to ensure joint accomplishments within the Park. This may include but is not limited to visitor protection and public safety, fire management, administration, public information, interpretation and publications, resource management, signage, and general development of policy.

2. Seek to develop cooperation performance measurements that will ensure service and cost efficiencies.

3. Designate a Joint Liaison committee to work in conjunction for the purposes of discussing and coordinating matters along with resolving substantive issues. This Liaison committee will meet on a quarterly basis to discuss and report to Key Officials as listed in Article V.

VI. COST-SHARE REQUIREMENT

Non-Federal cost-share is not required for this Agreement.

VII. PRE-AWARD COSTS

The Recipient is not authorized to incur costs prior to the award of this Agreement. Costs incurred prior to the award of this agreement are not allowable.

VIII. AWARD AND PAYMENT

A. NPS will provide funding to the Recipient in an amount not to exceed $1,784,123 in accordance with the NPS approved budget. The approved budget detail is incorporated herein. Any award beyond the current fiscal year is subject to the availability of funds.

Acceptance of a Federal financial assistance award from the Department of the Interior carries with it the responsibility to be aware of and comply with, the terms and conditions within this award document. Acceptance is defined as the start of work, drawing down funds, or accepting the award via electronic means.

B. Recipient shall request payment as applicable in accordance with the following:

1. Method of Payment. Payment will be made by advance and/or reimbursement through the Department of Treasury’s Automated Standard Application for Payments (ASAP) system.

2. Requesting Advances. Requests for advances must be submitted via the ASAP system.

Requests may be submitted as frequently as required to meet the needs of the Financial Assistance (FA) Recipient to disburse funds for the Federal share of project costs. If feasible, each request should be timed so that payment is received on the same day that the funds are dispersed for direct project costs and/or the proportionate share of any 293
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allowable indirect costs. If same–day transfers are not feasible, advance payments must be as close to actual disbursements as administratively feasible.

3. Requesting Reimbursement. Requests for reimbursements must be submitted via the ASAP system. Requests for reimbursement should coincide with normal billing patterns.

Each request must be limited to the amount of disbursements made for the Federal share of direct project costs and the proportionate share of allowable indirect costs incurred during that billing period.

4. Adjusting Payment Requests for Available Cash. Funds that are available from repayments to, and interest earned on, a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries, credits, discounts, and interest earned on any of those funds must be disbursed before requesting additional cash payments.

5. Bank Accounts. All payments are made through electronic funds transfer to the bank account identified in the ASAP system by the FA Recipient.

6. Supporting Documents and Agency Approval of Payments. Additional supporting documentation and prior NPS approval of payments may be required when/if a FA Recipient is determined to be “high risk” or has performance issues. If prior Agency payment approval is in effect for an award, the ASAP system will notify the FA Recipient when they submit a request for payment. The Recipient must then notify the NPS Financial Assistance Awarding Officer that a payment request has been submitted.

The NPS AO may request additional information from the Recipient to support the payment request prior to approving the release of funds, as deemed necessary. The FA Recipient is required to comply with these requests. Supporting documents may include invoices, copies of contracts, vendor quotes, and other expenditure explanations that justify the reimbursement requests.

C. Any award beyond the current fiscal year is subject to availability of funds; funds may be provided in subsequent fiscal years if project work is satisfactory, and funding is available.

D. Expenses charged against awards under the Agreement may not be incurred prior to the beginning of the Agreement and may be incurred only as necessary to carry out the approved objectives, scope of work and budget with prior approval from the NPS AO. The Recipient shall not incur costs or obligate funds for any purpose pertaining to the operation of the project, program, or activities beyond the expiration date stipulated in the award.

E. Any non–Federal share, whether in cash or in–kind, is expected to be paid out at the same general rate as the Federal share. Exceptions to this requirement may be granted by the AO based on sufficient documentation demonstrating previously determined plans for or later commitment of cash or in–kind contributions. In any case, the Recipient must meet their cost share commitment over the life of the award.

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IX. REPORTS AND/OR OUTPUTS/OUTCOMES

A. Refer to the second page of the Notice of Award document for FFR frequency and due dates.

Performance reports are also required at the same reporting frequency and due dates as the FFR. Reports must be submitted through the Grant Solutions “Manage Reports” functionality.

B. A final Performance Report and a final FFR will be due 120 days after the end-date of the Term of Agreement. If the recipient does not submit the final report before the required due date, NPS is required to submit a finding of non-compliance to the Federal Awardee Performance and Integrity Information System (FAPIIS). Each report shall be submitted as described above.

C. The Secretary of the Interior and the Comptroller General of the United States, or their duly authorized representatives, will have access, for the purpose of financial or programmatic review and examination, to any books, documents, papers, and records that are pertinent to the Agreement at all reasonable times during the period of retention in accordance with 2 CFR 200.334 Retention Requirements for Records.

D. Description of Deliverables/Project Products:

Timely updates from the City to the Park is required to facilitate the management of all aspects of the shuttle service, including staffing levels and deployment of the traffic management team, and to inform the Park of evolving issues that may require work by staff in visitor protection and public safety, fire management, administration, public information, interpretation and publications, resource management, signage, and general development of policy. Interim reports shall include:

• Ridership statistics of both internal and external shuttles for the reporting period. • Annual miles traveled by shuttles and the fuel efficiency by vehicle type (e.g., diesel, gas, hybrid).
• The Park will track and store diesel and gas utilization by shuttle vehicles with which to calculate emissions statistics.

Annual and data reporting should not be considered adequate for reporting issues arising that affect shuttle services during the operating season, such as problems with drivers or NPS staff, problems with safety or traffic flow in and around shuttle stops and at key intersections; and any problems that elicit significant visitor complaints to shuttle drivers or to city employees. Such issues will be reported as soon as they are known to the ATR.

X. AWARD SPECIFIC TERMS AND CONDITIONS

A. INSURANCE AND LIABILITY.

1. Insurance. The Recipient shall be required to (1) obtain liability insurance or (2) demonstrate present financial resources in an amount determined sufficient by the Government to cover claims brought by third parties for death, bodily injury, property 295
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damage, or other loss resulting from one or more identified activities carried out in connection with this Agreement.

2. Insured. The Federal Government shall be named as an additional insured under the Recipient's insurance policy.

3. Indemnification. The Recipient hereby agrees to indemnify the Federal government and NPS from any act or omission of the Recipient, its officers, employees, or (members, participants, agents, representatives, agents as appropriate), (1) against third party claims for damages arising from one or more identified activities carried out in connection with this Agreement and (2) for damage or loss to government property resulting from such an activity. This obligation shall survive the termination of this Agreement.

a. To purchase public and employee liability insurance at its own expense from a responsible company or companies with a minimum limitation of one million dollars ($1,000,000) per person for any one claim, and an aggregate limitation of three million dollars ($3,000,000) for any number of claims arising from any one incident.

The policies shall name the United States as an additional insured, shall specify that the insured shall have no right of subrogation against the United States for payments of any premiums or deductibles due thereunder, and shall specify that the insurance shall be assumed by, be for the account of, and be at the insured's sole risk. Prior to beginning the work authorized herein, the Recipient shall provide the NPS with confirmation of such insurance coverage.
b. To pay the United States the full value for all damage to the lands or other property of the United States caused by the Recipient, its officers, employees, or representatives. c. To provide workers' compensation protection to the Recipient, its officers, employees, and representatives.
d. To cooperate with NPS in the investigation and defense of any claims that may be filed with NPS arising out of the activities of the Recipient, its agents, and employees. e. In the event of damage to or destruction of the buildings and facilities assigned for the use of the Recipient in whole or in part by any cause whatsoever, nothing herein contained shall be deemed to require NPS to replace or repair the buildings or facilities. If NPS determines in writing, after consultation with the Recipient that damage to the buildings or portions thereof renders such buildings unsuitable for continued use by the Recipient, NPS shall assume sole control over such buildings or portions thereof If the buildings or facilities rendered unsuitable for use are essential for conducting operations authorized under this Agreement, then failure to substitute and assign other facilities acceptable to the Recipient will constitute termination of this Agreement by NPS.

4. Flow–down: For the purposes of this clause, "Recipient" includes such sub–recipients, contractors, or subcontractors as, in the judgment of the Recipient and subject to the Government's determination of sufficiency, have sufficient resources and/or maintain adequate and appropriate insurance to achieve the purposes of this clause.

B. ATTACHMENTS.
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Attachment A. Budget
Attachment B. Schedule

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XI. STANDARD TERMS AND CONDITIONS

1. DEPARTMENT OF INTERIOR STANDARD TERMS AND CONDITIONS, 2 CFR 200, 2 CFR 1402

Recipients must comply with all applicable federal statutes, regulations, executive orders (EOs), Office of Management and Budget (OMB) circulars. Any inconsistency or conflict in Standard Terms and Conditions, Program-Specific Terms and Conditions, and any Special Award Conditions of this Award will be resolved according to the following order of precedence: federal laws, Executive Orders, federal regulations, applicable notices published in the Federal Register, OMB circulars, Treasury’s Standard Terms and Conditions, Program-Specific Terms and Conditions, and any Special Award Conditions.

DOI terms and regulatory requirements located at:
• https://www.doi.gov/grants/doi-standard-terms-and-conditions • eCFR :: 2 CFR Part 200 -- Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
•
eCFR :: 2 CFR Part 1402 -- Financial Assistance Interior Regulation, Supplementing the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards

2. APPROVED INDIRECT RATE

Indirect costs must be charged consistently in accordance with the approved project budget, which is incorporated into this award as an attachment. In the case of a Master Cooperative agreement, indirect costs will be incorporated at the Task Agreement level. If the recipient has a Federally approved indirect rate, it is the responsibility of the Recipient to work with their cognizant agency in a timely manner to avoid the expiration of the Federally negotiated rate. If the Recipient has never had a Federally approved negotiated indirect rate, they may utilize a 10% de minimus rate per 2 CFR 200.414.

3. RESERVED

4. KEY OFFICIALS

A. Communications - The recipient shall address any communication regarding this Agreement to the ATR/Program Officer with a copy to the Awarding/Grants Management Officer. Communications that relate solely to technical matters may be sent only to the ATR/Program Officer.

B. Changes in Key Officials - Recipient may not make any permanent change in a key official without written notice to the other party reasonably in advance of the proposed change. The notice will include a justification with sufficient detail to permit evaluation of the impact of such a change on the scope of work specified within this Agreement.

Any permanent change in key officials will be made only by Agency Approval.

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5. PRIOR APPROVAL

The Recipient shall obtain prior approval for budget and program revisions, in accordance with 2 CFR 200.308.

6. PROPERTY UTILIZATION

All tools, equipment, and facilities furnished by NPS will be on a loan basis. Tools, equipment, and facilities will be returned in the same condition received except for normal wear and tear in project use. Property management standards set forth in 2 CFR 200.310 through 200.316 apply to this Agreement. All provided items must be consistently tracked and accounted for by the recipient and NPS both when provided to the recipient and upon return.

7. MODIFICATION, REMEDIES FOR NONCOMPLIANCE, TERMINATION

A. This Agreement may be modified at any time, prior to the expiration date, only by agreement executed by both parties. Modifications will be in writing and approved by the Financial Assistance Awarding Officer and the authorized representative of Recipient.

B. Additional conditions may be imposed by NPS if it is determined that the Recipient is non–compliant to the terms and conditions of this agreement. Remedies for Noncompliance can be found in 2 CFR 200.339.

C. This Agreement may be terminated consistent with applicable termination provisions for Agreements found in 2 CFR 200.340 through 200.343.

8. REPORTING OF MATTERS RELATED TO RECIPIENT INTEGRITY AND

PERFORMANCE

A. General Reporting Requirement
i. If the total value of your currently active grants, cooperative agreements, and procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this Federal award, then you, as the recipient, during that period of time must maintain the currency of information reported to the System for Award Management (SAM) that is made available in the designated integrity and performance system (currently the Federal Awardee Performance and Integrity Information System (FAPIIS)) about civil, criminal, or administrative proceedings described in paragraph 2 of this award term and condition.

This is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law 111-212, all information posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews required for Federal procurement contracts, will be publicly available.

B. Proceedings You Must Report
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i. Submit the information required about each proceeding that:
ii. Is in connection with the award or performance of a grant, cooperative agreement, or procurement contract from the Federal Government.
iii. Reached its final disposition during the most recent five-year period; and iv. Is one of the following:
a) A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this award term and condition; or
b) A civil proceeding that resulted in a finding of fault and liability and payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more; or
c) An administrative proceeding, as defined in paragraph 5 of this award term and condition, that resulted in a finding of fault and liability and payment of either a monetary fine or penalty of $5,000 or more; or reimbursement, restitution, or damages more than $100,000; or
d) Any other criminal, civil, or administrative proceeding if:

1. It could have led to an outcome described the award terms and conditions.

2. It had a different disposition arrived at by consent or compromise with an acknowledgment of fault on your part; and

3. The requirement in this award term and condition to disclose information about the proceeding does not conflict with applicable laws and regulations.

C. Reporting Procedures
Enter in the SAM Entity Management area the information that SAM requires about each proceeding described in the award terms and conditions. You do not need to submit the information a second time under assistance awards that you received if you already provided the information through SAM because you were required to do so under Federal procurement contracts that you were awarded.

D. Reporting Frequency
During any period when you are subject to the requirement in paragraph 1 of this award term and condition, you must report proceedings information through SAM for the most recent five-year period, either to report new information about any proceeding(s) that you have not reported previously or affirm that there is no new information to report. Recipients that have Federal contract, grant, and cooperative agreement awards with a cumulative total value greater than $10,000,000 must disclose semiannually any information about the criminal, civil, and administrative proceedings.

E. Definitions
i. For purposes of this award term and condition:
a) Administrative proceeding means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed Services Board of Contract Appeals proceedings). This includes proceedings at the Federal and State level but only in 300
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connection with performance of a Federal contract or grant. It does not include audits, site visits, corrective plans, or inspection of deliverables. b) Conviction means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere.
c) Total value of currently active grants, cooperative agreements, and procurement contracts includes—

1.Only the Federal share of the funding under any Federal award with a recipient cost share or match; and

2.The value of all expected funding increments under a Federal award and options, even if not yet exercised.

9. FUNDING USED FOR THE PURCHASE AND OPERATION OF UNMANNED

AIRCRAFT SYSTEMS (UAS)

If Federal funding is provided to a State, local, tribal, or territorial government for the purchase or use of UAS for their operations, the recipient must have in place policies and procedures to safeguard individuals' privacy, civil rights, and civil liberties prior to expending such funds.

Per the policy memorandum issued by National Park Service Director, dated June 19, 2014, the launching, landing, and operating of unmanned aircraft, that is not under the control of the Federal government, on lands and waters administered by the National Park Service is prohibited unless approval is received from the Associate Director for such purposes as:

Scientific study, search and rescue operations, fire operations, and law enforcement.

Administrative use includes the use of unmanned aircraft by:
(i) NPS personnel as operators or crew;
(ii) cooperators such as government agencies and universities that conduct unmanned aircraft operations for the NPS pursuant to a written agreement; and (iii) other entities, including commercial entities, conducting unmanned aircraft operations for the NPS, provided such entities are in compliance with all applicable FAA and Department of the Interior requirements.

10. PATENTS AND INVENTIONS (37 CFR 401)

Recipients of agreements which support experimental, developmental, or research work shall be subject to applicable regulations governing patents and inventions, including the government-wide regulations issued by the Department of Commerce at 37 CFR 401, Rights to Inventions Made by Non-profit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements. These regulations do not apply to any agreement made primarily for educational purposes.

In accordance with 37 CFR 401.3(a), the provision at 37 CFR 401.14(a), with authorized modifications for the National Park Service, is hereby included in this agreement:

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(a) Definitions

(1) Invention means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code, or any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).

(2) Subject invention means any invention of the recipient conceived or first actually reduced to practice in the performance of work under this agreement, provided that in the case of a variety of plant, the date of determination (as defined in section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d)) must also occur during the period of agreement performance.

(3) Practical Application means to manufacture in the case of a composition or product, to practice in the case of a process or method, or to operate in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are, to the extent permitted by law or government regulations, available to the public on reasonable terms.

(4) Made when used in relation to any invention means the conception or first actual reduction to practice of such invention.

(5) Small Business Firm means a small business concern as defined at section 2 of Public Law. 85‑536 (15 U.S.C. 632) and implementing regulations of the Administrator of the Small Business Administration. For the purpose of this provision, the size standards for small business concerns involved in government procurement and subcontracting at 13 CFR 121.3‑8 and 13 CFR 121.3‑12, respectively, will be used.

(6) Nonprofit Organization means a university or other institution of higher education, or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c) and exempt from taxation under section 501(a) of the Internal Revenue Code (25 U.S.C. 501(a)) or any nonprofit scientific or educational organization qualified under a state nonprofit organization statute.

(b) Allocation of Principal Rights.

The Recipient may retain the entire right, title, and interest throughout the world to each subject invention subject to this provision and 35 U.S.C. 203. With respect to any subject invention in which the Recipient retains title, the Federal government shall have a nonexclusive, nontransferable, irrevocable, paid‑up license to practice or have practiced for or on behalf of the United States the subject invention throughout the world.

(c) Invention Disclosure, Election of Title and Filing of Patent Application by Recipient

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(1) The Recipient will disclose each subject invention to the National Park Service within two months after the inventor discloses it in writing to Recipient personnel responsible for patent matters. The disclosure to the National Park Service shall be in the form of a written report and shall identify the agreement under which the invention was made and the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological or electrical characteristics of the invention. The disclosure shall also identify any publication, on sale or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. In addition, after disclosure to the National Park Service, the Recipient will promptly notify the National Park Service of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the Recipient.

(2) The Recipient will elect in writing whether or not to retain title to any such invention by notifying the National Park Service within two years of disclosure to the National Park Service. However, in any case where publication, on sale or public use has initiated the one-year statutory period wherein valid patent protection can still be obtained in the United States, the period for election of title may be shortened by the National Park Service to a date that is no more than 60 days prior to the end of the statutory period.

(3) The Recipient will file its initial patent application on a subject invention to which it elects to retain title within one year after election of title or, if earlier, prior to the end of any statutory period wherein valid patent protection can be obtained in the United States after a publication, on sale, or public use. The Recipient will file patent applications in additional countries or international patent offices within either ten months of the corresponding initial patent application or six months from the date permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications where such filing has been prohibited by a Secrecy Order.

(4) Requests for extension of the time for disclosure, election, and filing under subparagraphs (1), (2), and (3) may, at the discretion of the National Park Service, be granted.

(d) Conditions When the Government May Obtain Title.

The Recipient will convey to the National Park Service, upon written request, title to any subject inventions

(1) If the Recipient fails to disclose or elect title to the subject invention within the times specified in (c), above, or elects not to retain title; provided that the National Park Service may only request title within 60 days after learning of the failure of the Recipient to disclose or elect within the specified times.

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(2) In those countries in which the Recipient fails to file patent applications within the times specified in (c) above; provided, however, that if the Recipient has filed a patent application in a country after the times specified in (c) above, but prior to its receipt of the written request of the National Park Service, the Recipient shall continue to retain title in that country.

(3) In any country in which the Recipient decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceeding on, a patent on a subject invention.

(e) Minimum Rights to Recipient and Protection of the Recipient Right to File

(1) The Recipient will retain a nonexclusive royalty‑free license throughout the world in each subject invention to which the Government obtains title, except if the Recipient fails to disclose the invention within the times specified in (c), above. The Recipient's license extends to its domestic subsidiary and affiliates, if any, within the corporate structure of which the Recipient is a party and includes the right to grant sublicenses of the same scope to the extent the Recipient was legally obligated to do so at the time the agreement was awarded. The license is transferable only with the approval of the National Park Service except when transferred to the successor of that party of the Recipient's business to which the invention pertains.

(2) The Recipient's domestic license may be revoked or modified by the National Park Service to the extent necessary to achieve expeditious practical application of the subject invention pursuant to an application for an exclusive license submitted in accordance with applicable provisions at 37 CFR part 404 and the National Park Service licensing regulations (if any). This license will not be revoked in that field of use or the geographical areas in which the Recipient has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion of the National Park Service to the extent the Recipient, its licensees, or the domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country.

(3) Before revocation or modification of the license, the National Park Service will furnish the Recipient a written notice of its intention to revoke or modify the license, and the Recipient will be allowed thirty days (or such other time as may be authorized by the National Park Service for good cause shown by the Recipient) after the notice to show cause why the license should not be revoked or modified. The Recipient has the right to appeal, in accordance with applicable regulations in 37 CFR part 404 and National Park Service regulations (if any) concerning the licensing of Government‑owned inventions, any decision concerning the revocation or modification of the license.

(f) Recipient Action to Protect the Government's Interest

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(1) The Recipient agrees to execute or to have executed and promptly deliver to the National Park Service all instruments necessary to

(i) establish or confirm the rights the Government has throughout the world in those subject inventions to which the Recipient elects to retain title, and (ii) convey title to the National Park Service when requested under paragraph (d) above and to enable the government to obtain patent protection throughout the world in that subject invention.

(2) The Recipient agrees to require, by written agreement, its employees, other than clerical and non-technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Recipient each subject invention made under agreement in order that the Recipient can comply with the disclosure provisions of paragraph (c), above, and to execute all papers necessary to file patent applications on subject inventions and to establish the government's rights in the subject inventions. This disclosure format should require, as a minimum, the information required by (c)(1), above. The Recipient shall instruct such employees through employee agreements or other suitable educational programs on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.

(3) The Recipient will notify the National Park Service of any decisions not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than thirty days before the expiration of the response period required by the relevant patent office.

(4) The Recipient agrees to include, within the specification of any United States patent applications and any patent issuing thereon covering a subject invention, the following statement, “This invention was made with government support under (identify the agreement) awarded by (identify the Federal agency). The government has certain rights in the invention.”

(g) Subcontracts. The Recipient will include this provision, suitably modified to identify the parties, in all sub-agreements or subcontracts, regardless of tier, for experimental, developmental or research work. The sub-recipient or subcontractor will retain all rights provided for the Recipient in this provision, and the Recipient will not, as part of the consideration for awarding the sub-agreement or subcontract, obtain rights in the sub- recipient's or subcontractor's subject inventions.

(h) Reporting on Utilization of Subject Inventions. The Recipient agrees to submit on request periodic reports no more frequently than annually on the utilization of a subject invention or on efforts at obtaining such utilization that are being made by the Recipient or its licensees or assignees. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Recipient, and such other data and information as the National Park Service may reasonably specify. 305
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The Recipient also agrees to provide additional reports as may be requested by the National Park Service in connection with any march‑in proceeding undertaken by the National Park Service in accordance with paragraph (j) of this provision. As required by 35 U.S.C. 202(c)(5), the National Park Service agrees it will not disclose such information to persons outside the government without permission of the Recipient.

(i) Preference for United States Industry. Notwithstanding any other part of this provision, the Recipient agrees that neither it nor any assignee will grant to any person the exclusive right to use or sell any subject inventions in the United States unless such person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the United States. However, in individual cases, the requirement for such an agreement may be waived by the National Park Service upon a showing by the Recipient or its assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States or that under the circumstances domestic manufacture is not commercially feasible.

(j) March‑in Rights. The Recipient agrees that with respect to any subject invention in which it has acquired title, the National Park Service has the right in accordance with the procedures in 37 CFR 401.6 and any supplemental regulations of the National Park Service to require the Recipient, an assignee or exclusive licensee of a subject invention to grant a nonexclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the Recipient, assignee, or exclusive licensee refuses such a request the National Park Service has the right to grant such a license itself if the National Park Service determines that:

(1) Such action is necessary because the Recipient or assignee has not taken or is not expected to take within a reasonable time, effective steps to achieve practical application of the subject invention in such field of use.

(2) Such action is necessary to alleviate health or safety needs, which are not reasonably satisfied by the Recipient, assignee, or their licensees.

(3) Such action is necessary to meet requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by the Recipient, assignee, or licensees; or

(4) Such action is necessary because the agreement required by paragraph (i) of this provision has not been obtained or waived or because a licensee of the exclusive right to use or sell any subject invention in the United States is in breach of such agreement.

(k) Special Provisions for Agreements with Nonprofit Organizations.

If the Recipient is a nonprofit organization, it agrees that:

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(1) Rights to a subject invention in the United States may not be assigned without the approval of the National Park Service, except where such assignment is made to an organization which has as one of its primary functions the management of inventions, provided that such assignee will be subject to the same provisions as the Recipient;

(2) The Recipient will share royalties collected on a subject invention with the inventor, including Federal employee co‑inventors (when the National Park Service deems it appropriate) when the subject invention is assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;

(3) The balance of any royalties or income earned by the Recipient with respect to subject inventions, after payment of expenses (including payments to inventors) incidental to the administration of subject inventions, will be utilized for the support of scientific research or education; and

(4) It will make efforts that are reasonable under the circumstances to attract licensees of subject invention that are small business firms and that it will give a preference to a small business firm when licensing a subject invention if the Recipient determines that the small business firm has a plan or proposal for marketing the invention which, if executed, is equally as likely to bring the invention to practical application as any plans or proposals from applicants that are not small business firms; provided, that the Recipient is also satisfied that the small business firm has the capability and resources to carry out its plan or proposal. The decision whether to give a preference in any specific case will be at the discretion of the Recipient. However, the Recipient agrees that the National Park Service may review the Recipient's licensing program and decisions regarding small business applicants, and the Recipient will negotiate changes to its licensing policies, procedures, or practices with the National Park Service when this review discloses that the Recipient could take reasonable steps to implement more effectively the requirements of this paragraph (k)(4).

(l) Communication. Communications regarding matters relating to this provision shall be directed to the Deputy Associate Solicitor, Branch of Procurements and Patents, Office of the Solicitor, U.S. Department of the Interior, 1849 C Street NW, Washington, D.C. 20240.

11. ENSURING THE FUTURE IS MADE IN ALL OF AMERICA BY ALL OF AMERICA’S

WORKERS PER
E.O. 14005 (dated January 25, 2021)

Per Executive Order 14005, entitled "Ensuring the Future Is Made in All of America by All of America's Workers” the Recipient shall maximize the use of goods, products, and materials produced in, and services offered in, the United States, and whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.

12. SECTION 508 OF THE REHABILITATION ACT OF 1973 (29 U.S.C. §794 (d))

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While the requirements of Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), do not apply to financial assistance agreements, the NPS is subject to the Act's requirements that all documents posted on an NPS, or NPS-hosted website comply with the accessibility standards of the Act. Accordingly, final deliverable reports prepared under this agreement and submitted in electronic format must be submitted in a format whereby NPS can easily meet the requirements of Section 508 of the Rehabilitation Act of 1973, as amended. NOTE: Progress Reports and financial reports are not considered final deliverables and therefore the following requirements do not apply.

All electronic documents prepared under this Agreement must meet the requirements of Section 508 of the Rehabilitation Act of 1973, as amended. The Act requires that all electronic products prepared for the Federal Government be accessible to persons with disabilities, including those with vision, hearing, cognitive, and mobility impairments. View Section 508 of the Rehabilitation Act, Standards and Guidelines for detailed information.

The following summarizes some of the requirements for preparing NPS reports in conformance with Section 508 for eventual posting by NPS to an NPS-sponsored website. For specific detailed guidance and checklists for creating accessible digital content, please go to Section 508.gov, Create Accessible Digital Products. All accessible digital content must conform to the requirements and techniques of the Web Content Accessibility Guidelines (WCAG) 2.0 or later, Level AA Success Criteria.

a. Electronic documents with images
Provide a text equivalent for every non-text element (including photographs, charts, and equations) in all publications prepared in electronic format. Use descriptions such as "alt" and "longdesc" for all non-text images or place them in element content. For all documents prepared, vendors must prepare one standard HTML format as described in this statement of work AND one text format that includes descriptions for all non-text images. "Text equivalent" means text sufficient to reasonably describe the image. Images that are merely decorative require only a very brief "text equivalent" description. However, images that convey information that is important to the content of the report require text sufficient to reasonably describe that image and its purpose within the context of the report.

b. Electronic documents with complex charts or data tables When preparing tables that are heavily designed, prepare adequate alternate information so that assistive technologies can read them out. Identify row and column headers for data tables. Provide the information in a non-linear form. Markups will be used to associate data cells and header cells for data tables that have two or more logical levels of row and column headers.

c. Electronic documents with forms
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functionality required for completion and submission of the form, including all directions and cues.

13. LOBBYING PROHIBITION

18 U.S.C. §1913, Lobbying with Appropriated Moneys, as amended by Public Law 107–273, Nov. 2, 2002 Violations of this section shall constitute violations of section 1352(a) of title

31. In addition, the related restrictions on the use of appropriated funds found in Div. F, § 402 of the Omnibus Appropriations Act of 2008 (P.L. 110–161) also apply.

14. ANTI–DEFICIENCY ACT

Pursuant to 31 U.S.C. §1341 nothing contained in this Agreement shall be construed as binding the NPS to expend in any one fiscal year any sum in excess of appropriations made by Congress, for the purposes of this Agreement for that fiscal year, or other obligation for the further expenditure of money in excess of such appropriations.

15. ASSIGNMENT

No part of this Agreement shall be assigned to any other party without prior written approval of the NPS and the Assignee.

16. MEMBER OF CONGRESS

Pursuant to 41 U.S.C. § 22, no Member of Congress shall be admitted to any share or part of any contract or agreement made, entered into, or adopted by or on behalf of the United States, or to any benefit to arise thereupon.

17. AGENCY

The Recipient is not an agent or representative of the United States, the Department of the Interior, NPS, or the Park, nor will the Recipient represent itself as such to third parties. NPS employees are not agents of the Recipient and will not act on behalf of the Recipient.

18. NON-EXCLUSIVE AGREEMENT

This Agreement in no way restricts the Recipient or NPS from entering into similar agreements, or participating in similar activities or arrangements, with other public or private agencies, organizations, or individuals.

19. PARTIAL INVALIDITY

If any provision of this Agreement or the application thereof to any party or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement or the application of such provision to the parties or circumstances other than those to which it is 309
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held invalid or unenforceable, shall not be affected thereby and each provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.

20. NO EMPLOYMENT RELATIONSHIP

This Agreement is not intended to and shall not be construed to create an employment relationship between NPS and Recipient or its representatives. No representative of Recipient shall perform any function or make any decision properly reserved by law or policy to the Federal government.

21. NO THIRD-PARTY RIGHTS

This Agreement creates enforceable obligations between only NPS and Recipient. Except as expressly provided herein, it is not intended, nor shall it be construed to create any right of enforcement by or any duties or obligation in favor of persons or entities not a party to this Agreement.

22. PROGRAM INCOME

If the Recipient earns program income, as defined in 2 CFR §200.1, during the period of performance of this agreement, to the extent available the Recipient must disburse funds available from program income, and interest earned on such funds, before requesting additional cash payments (2 CFR§200.305 (5)). As allowed under 2 CFR §200.307, program income may be added to the Federal award by the Federal agency and the non-Federal entity.

The program income must be used for the purposes, and under the conditions of, the Federal award. Disposition of program income remaining after the end of the period of performance shall be negotiated as part of the agreement closeout process.

23. RIGHTS IN DATA

The Recipient must grant the United States of America a royalty–free, non–exclusive and irrevocable license to publish, reproduce and use, and dispose of in any manner and for any purpose without limitation, and to authorize or ratify publication, reproduction or use by others, of all copyrightable material first produced or composed under this Agreement by the Recipient, its employees or any individual or concern specifically employed or assigned to originate and prepare such material.

24. CONFLICT OF INTEREST

(a) Applicability.

1. This section intends to ensure that non-Federal entities and their employees take appropriate steps to avoid conflicts of interest in their responsibilities under or with respect to Federal financial assistance agreements.

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2. In the procurement of supplies, equipment, construction, and services by recipients and by subrecipients, the conflict-of-interest provisions in 2 CFR 200.318 apply.

(b) Requirements.

1. Non-Federal entities must avoid prohibited conflicts of interest, including any significant financial interests that could cause a reasonable person to question the recipient's ability to provide impartial, technically sound, and objective performance under or with respect to a Federal financial assistance agreement.

2. In addition to any other prohibitions that may apply with respect to conflicts of interest, no key official of an actual or proposed recipient or subrecipient, who is substantially involved in the proposal or project, may have been a former Federal employee who, within the last one (1) year, participated personally and substantially in the evaluation, award, or administration of an award with respect to that recipient or subrecipient or in development of the requirement leading to the funding announcement.

3. No actual or prospective recipient or subrecipient may solicit, obtain, or use non-public information regarding the evaluation, award, or administration of an award to that recipient or subrecipient or the development of a Federal financial assistance opportunity that may be of competitive interest to that recipient or subrecipient.

(c) Notification.

1. Non-Federal entities, including applicants for financial assistance awards, must disclose in writing any conflict of interest to the DOI awarding agency or pass- through entity in accordance with 2 CFR 200.112, Conflicts of interest.

(d) Recipients must establish internal controls that include, at a minimum, procedures to identify, disclose, and mitigate or eliminate identified conflicts of interest. The recipient is responsible for notifying the Financial Assistance Officer in writing of any conflicts of interest that may arise during the life of the award, including those that have been reported by subrecipients. Restrictions on Lobbying. Non-Federal entities are strictly prohibited from using funds under this grant or cooperative agreement for lobbying activities and must provide the required certifications and disclosures pursuant to 43 CFR Part 18 and 31 USC 1352.

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or cooperative agreement and will determine whether a significant potential conflict exists and, if it does, develop an appropriate means for resolving it.

(f) Enforcement. Failure to resolve conflicts of interest in a manner that satisfies the Government may be cause for termination of the award. Failure to make required disclosures may result in any of the remedies described in 2 CFR 200.338, Remedies for Noncompliance, including suspension or debarment (see also 2 CFR Part 180).

25. BUILD AMERICA, BUY AMERICA

(a) Standard Buy America Preference Award Term

The following terms apply for financial assistance agreements for infrastructure that currently or are anticipated to exceed the Simplified Acquisition Threshold (SAT), currently $250,000.00. This threshold applies for the duration of the award and obligations made for infrastructure projects when additional funds are obligated through modification or renewal.

Required Use of American Iron, Steel, Manufactured Products, and Construction Materials

As required by Section 70914 of the Bipartisan Infrastructure Law (also known as the Infrastructure Investment and Jobs Act), P.L. 117-58, on or after May 14, 2022, none of the funds under a federal award that are part of Federal financial assistance program for infrastructure may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States, unless subject to an approved waiver. The requirements of this section must be included in all subawards, including all contracts and purchase orders for work or products under this program.

Recipients of an award of Federal financial assistance are hereby notified that none of the funds provided under this award may be used for a project for infrastructure unless:

1. All iron and steel used in the project are produced in the United States—this means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States;

2. All manufactured products used in the project are produced in the United States -this means the manufactured product was manufactured in the United States; and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation; and,
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3. All construction materials are manufactured in the United States—this means that all manufacturing processes for the construction material occurred in the United States.

The Buy America preference only applies to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project.

Nor does a Buy America preference apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of the structure or permanently affixed to the infrastructure project.

For further information on the Buy America preference, please visit “Buy America”
Domestic Sourcing Guidance and Waiver Process for DOI Financial Assistance Agreements | U.S. Department of the Interior. Additional information can also be found at the White House Made in America Office website: Made In America | OMB | The White House.

Waivers
When necessary, recipients may apply for, and the Department of the Interior (DOI) may grant, a waiver from these requirements, subject to review by the Made in America Office. The DOI may waive the application of the domestic content procurement preference in any case in which it is determined that one of the below circumstances applies:

1. Non-availability Waiver: the types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality;

2. Unreasonable Cost Waiver: the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent; or

3. Public Interest Waiver: applying the domestic content procurement reference would be inconsistent with the public interest.

There may be instances where an award qualifies, in whole or in part, for an existing DOI general applicability waiver as described at:

Approved DOI General Applicability
Waivers | U.S. Department of the Interior.

If the specific financial assistance agreement, infrastructure project, or non-domestic materials meets the criteria of an existing general applicability waiver within the limitations defined within the waiver, the recipient is not required to request a separate waiver for non-domestic materials.

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