May 2023
ATTACHMENT C
ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR (e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines) is received and approved by IOAI.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
F. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
G. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT based on these acceptances. The LOCAL AGENCY shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by CONSULTANT or subconsultant to a subconsultant. [Choose either Method 1, Method 2, or Method 3 below and delete the other two.] Method 1: No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
Method 2: No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. Any retainage kept by CONSULTANT or by a subconsultant must be paid in full to the earning subconsultant within 15 days after the subconsultant’s work is satisfactorily completed.
Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
Method 3: The LOCAL AGENCY shall hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY of the contract work and pay retainage to CONSULTANT based on these acceptances. CONSULTANT or subconsultant shall return all monies withheld in retention from all subconsultants within 15 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the LOCAL AGENCY. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT; deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and nonDBE subconsultants.
Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1. CONSULTANT shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2. Regulation 2 CFR 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.
D. Payroll Records
1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request. b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
c. The public shall not be given access to certified payroll records by the CONSULTANT.
The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated.
Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
F. Penalty
1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the CONSULTANT of the project is not liable for the penalties described above unless the CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the CONSULTANT fails to comply with all of the following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
H. Employment of Apprentices
1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
2. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements.
Penalties are specified in Labor Code §1777.7.
ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this AGREEMENT.
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee.
For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS
FOR LOBBYING
[Include this article in all AGREEMENTs where federal funding will exceed $150,000. If less than $150,000 in federal funds will be expended on the AGREEMENT; delete this article and re-number the subsequent articles.]
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 Local Assistance Procedures Manual Exhibit 10-R
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May 2023
ATTACHMENT C
CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
I. CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the LOCAL AGENCY components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
Local Assistance Procedures Manual Exhibit 10-R
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4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
C. Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. CONSULTANT, subrecipient (LOCAL AGENCY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26).
To ensure equal participation of DBEs provided in 49 CFR 26.5, the LOCAL AGENCY shows a contract goal for DBEs. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate Good Faith Efforts (GFE) to meet this goal. It is CONSULTANT’s responsibility to verify at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes and work code applicable to the type of work the firm will perform on the contract. Additionally, the CONSULTANT is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe-search.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer. • 60 percent counts if the materials or supplies are purchased from a DBE regular dealer. • Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer." This AGREEMENT is subject to 49 CFR 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is %. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
Local Assistance Procedures Manual Exhibit 10-R
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May 2023
ATTACHMENT C
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: Proposer/Contractor Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying CONSULTANT from future proposing as non-responsible E. Termination and Replacement of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the LOCAL AGENCY’s written consent. CONSULTANT shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the LOCAL AGENCY. Unless the LOCAL AGENCY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form.
Termination of DBE Subconsultants
After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the LOCAL AGENCY:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
Local Assistance Procedures Manual Exhibit 10-R
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6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8. Listed DBE voluntarily withdraws with written notice from the Contract.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. The LOCAL AGENCY determines other documented good cause.
CONSULTANT must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
1. Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons listed above. Simultaneously send a copy of this written notice to the LOCAL AGENCY. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the LOCAL AGENCY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
2. If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSULTANT’s written notice.
3. Submit CONSULTANT’s DBE termination request by written letter to the LOCAL AGENCY and include:
• One or more above listed justifiable reasons along with supporting documentation. • CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice • The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants
After receiving the LOCAL AGENCY’s written authorization of DBE termination request, CONSULTANT must obtain the LOCAL AGENCY’s written agreement for DBE replacement.
CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other forces or material sources in writing to the LOCAL AGENCY which must include:
a. Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
Local Assistance Procedures Manual Exhibit 10-R
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ATTACHMENT C
s
• Proposed subcontract agreement and written confirmation of agreement to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment
2. If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of LOCAL AGENCY's authorization to terminate the DBE. CONSULTANT may request the LOCAL AGENCY's approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had intended to self-perform, to the extent needed to meet DBE commitment
• Solicitations of DBEs for performance of work identified • Correspondence with interested DBEs that may have included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached • If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non-DBE's price quotes for work identified, as the LOCAL AGENCY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• Additional documentation that supports CONSULTANT’s GFE The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
F. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The LOCAL AGENCY shall request CONSULTANT to:
1. Notify the LOCAL AGENCY’s contract administrator or designated representative of any changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
• Name and business address of each 1 -tier subconsultant • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9-F: Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
Local Assistance Procedures Manual Exhibit 10-R
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ATTACHMENT C
If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete Exhibit 17-O: Disadvantaged Business Enterprises (DBE) Certification Status Change and submit the form to the LOCAL AGENCY within 30 days of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17-F: Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.
In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY must display both commitments and attainments.
G. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
CONSULTANT must perform CUF evaluation for each DBE working on a federal-aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
CONSULTANT must provide written notification to the LOCAL AGENCY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9-J: Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with the submittal:
• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. CONSULTANT must submit to the LOCAL AGENCY Local Assistance Procedures Manual Exhibit 10-R
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May 2023
ATTACHMENT C
these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
CONSULTANT must notify the LOCAL AGENCY immediately if they believe the DBE may not be performing a CUF.
The LOCAL AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9-J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional LOCAL AGENCY evaluations. The LOCAL AGENCY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The LOCAL AGENCY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation. Upon completing the evaluation, the LOCAL AGENCY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt. If the LOCAL AGENCY determines the DBE is not performing a CUF, the CONSULTANT must suspend performance of the noncompliant work.
CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of LOCAL AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment • Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
If CONSULTANT and/or the LOCAL AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT must immediately suspend performance of the noncompliant portion of the work. LOCAL AGENCY may deny payment for the noncompliant portion of the work. LOCAL AGENCY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENGY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings for the remaining portion of the DBE's work. LOCAL AGENCY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the LOCAL AGENCY's approval. The LOCAL AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work Local Assistance Procedures Manual Exhibit 10-R
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ATTACHMENT C
of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier.
The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
K. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.
L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete and email Exhibit 9-F:
Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to local administering agencies.
For projects awarded on or after September 1, 2023: Exhibit 9-F is no longer required. Instead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9-P to the LOCAL AGENCY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
ARTICLE XIX INSURANCE
[Choose either Option 1 or Option 2]
[Option 1 - for AGREEMENT with a scope of services that may require the CONSULTANT or subconsultant to work within the operating state or Local Agency Highway Right of Way; where there would be exposure to public traffic or construction operations.] A. Prior to commencement of the work described herein, CONSULTANT shall furnish LOCAL AGENCY a Certificate of Insurance stating that there is general comprehensive liability insurance presently in effect for CONSULTANT with a combined single limit (CSL) of not less than one million dollars ($1,000,000) per occurrence.
B. The Certificate of Insurance will provide:
1. That the insurer will not cancel the insured’s coverage without thirty (30) calendar days prior written notice to LOCAL AGENCY.
2. That LOCAL AGENCY, its officers, agents, employees, and servants are included as additional insureds, but only insofar as the operations under this AGREEMENT are concerned.
3. That LOCAL AGENCY will not be responsible for any premiums or assessments on the policy.
Local Assistance Procedures Manual Exhibit 10-R
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May 2023
ATTACHMENT C
C. CONSULTANT agrees that the bodily injury liability insurance herein provided for, shall be in effect at all times during the term of this AGREEMENT. In the event said insurance coverage expires at any time or times during the term of this AGREEMENT, CONSULTANT agrees to provide at least thirty (30) calendar days prior notice to said expiration date; and a new Certificate of Insurance evidencing insurance coverage as provided for herein, for not less than either the remainder of the term of the AGREEMENT, or for a period of not less than one (1) year. New Certificates of Insurance are subject to the approval of LOCAL AGENCY. In the event CONSULTANT fails to keep in effect at all times insurance coverage as herein provided, LOCAL AGENCY may, in addition to any other remedies it may have, terminate this AGREEMENT upon occurrence of such event.
[Option 2 - for AGREEMENTs with a scope of services that will not require the CONSULTANT or subconsultant to work within the operating state or Local Agency Highway Right of Way where there would be exposure to public traffic or construction CONSULTANT operations.] CONSULTANT is not required to show evidence of general comprehensive liability insurance.
ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.
B. This AGREEMENT is valid and enforceable only if sufficient funds are made available to LOCAL AGENCY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
D. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY’s Contract Administrator.
C. There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this AGREEMENT without prior written approval by LOCAL AGENCY’s Contract Administrator.
ARTICLE XXII CONTINGENT FEE
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing Local Assistance Procedures Manual Exhibit 10-R
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business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
ARTICLE XXIII DISPUTES
Prior to either party commencing any legal action under this AGREEMENT, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.
[Choose either Option 1 or Option 2]
[Option 1 - Use paragraphs A through C below for all AGREEMENTs without PS&E submittal] A. Any dispute, other than audit, concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by a committee consisting of LOCAL AGENCY’s Contract Administrator and (Insert Department Head or Official), who may consider written or verbal information submitted by CONSULTANT.
B. Not later than thirty (30) calendar days after completion of all work under the AGREEMENT, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this AGREEMENT. [Option 2 - Replace Paragraph B, above, with the following for AGREEMENTs requiring the submission of PS&E]
B. Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
ARTICLE XXIV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the State, and the FHWA if federal participating funds are used in this AGREEMENT; to review and inspect the project activities and files at all reasonable times during the performance period of this AGREEMENT.
ARTICLE XXV SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives.
CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code.
CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
Local Assistance Procedures Manual Exhibit 10-R
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ATTACHMENT C
C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.
[Add the following paragraph to all AGREEMENTs, which may require trenching of five feet or deeper] D. CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.
ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever.
Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by CONSULTANT in performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to City which is in CONSULTANT’s possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this AGREEMENT must be approved in writing by City.
B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City.
C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract.
Any reuse by City for another project or project location shall be at City’s sole risk.
D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federalaid contracts).
E. LOCAL AGENCY may permit copyrighting reports or other agreement products. If copyrights are permitted; the AGREEMENT shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR A. If claims are filed by LOCAL AGENCY’s construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with LOCAL AGENCY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
B. CONSULTANT’s personnel that LOCAL AGENCY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from LOCAL AGENCY.
Local Assistance Procedures Manual Exhibit 10-R
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May 2023
ATTACHMENT C
Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this AGREEMENT.
C. Services of CONSULTANT’s personnel in connection with LOCAL AGENCY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this AGREEMENT in order to resolve the construction claims.
ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.
E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
[For PS&E contracts add paragraph F, below, to paragraphs A through E, above] F. All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity, other than LOCAL AGENCY, Caltrans, and/or FHWA. All of the materials prepared or assembled by CONSULTANT pursuant to performance of this Contract are confidential and CONSULTANT agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, City has the right to reimbursement and indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
ARTICLE XXX EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by LOCAL AGENCY. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the AGREEMENT record.
ARTICLE XXXI PROMPT PAYMENT
A. PROMPT PAYMENT FROM LOCAL AGENCY TO CONSULTANT
The LOCAL AGENCY shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from CONSULTANT on a professional service contract. If the LOCAL AGENCY fails to pay promptly, the LOCAL AGENCY shall pay interest to the CONSULTANT, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the LOCAL AGENCY shall act in accordance with both of the following:
(1) The LOCAL AGENCY shall review each payment request as soon as feasible after receipt to verify it is a proper payment request.
(2) The LOCAL AGENCY must return any payment request deemed improper by the LOCAL AGENCY to the CONSULTANT as soon as feasible, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.
B. PROMPT PAYMENT CERTIFICATION
For projects awarded on or after September 1, 2023: the CONSULTANT must now submit Exhibit 9-P to the LOCAL AGENCY administering the contract by the 15th of the month following the month of any payment(s). If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
The LOCAL AGENCY must verify all Exhibit 9-P information, monitor compliance with prompt payment requirements for DBE and non-DBE firms, and address any shortfalls to the DBE commitment and prompt payment issues until the end of the project. The LOCAL AGENCY must email a copy of Exhibit 9-P to [email protected] before the end of the month after receiving the Exhibit 9-P from the CONSULTANT.
ARTICLE XXXII TITLE VI ASSURANCES
APPENDICES A - E of the TITLE VI ASSURANCES
[The U.S. Department of Transportation Order No.1050.2A requires all federal-aid Department of Transportation contracts between an agency and a consultant to contain Appendices A and E of the Title VI Assurances. Include Appendices B, C, and D if appliable as shown below. In addition, the consultant must include the Title VI Assurances Appendices A and E, and if applicable Appendices B, C, and D in all subcontracts to perform work under the contract.
The clauses of Appendix B of this Assurance shall be included as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a LOCAL AGENCY.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
The clauses set forth in Appendix C and Appendix D of this Assurance shall be included as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the LOCAL AGENCY with other parties:
a. for the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and
b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program.]
APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations: CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives.
Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the recipient will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the recipient all the right, title and interest of the U.S.
Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in consideration of the conveyance of said lands and interest in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3) that in the event of breach of any of the abovementioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.)
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the recipient pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations(as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Nondiscrimination covenants, the recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the recipient and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE
ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by the recipient pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the recipient will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.*
C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, the recipient will there upon revert to and vest in and become the absolute property of the recipient and its assigns.
APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following nondiscrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ATTACHMENT C
public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C.1681 et seq).
ARTICLE XXXIII NOTIFICATION
All notices hereunder and communications regarding interpretation of the terms of this AGREEMENT and changes thereto, shall be effected by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:
CONSULTANT:
(CONSULTANT)
(NAME) ,Project Manager
(ADDRESS)
LOCAL AGENCY:
(LOCAL AGENCY)
(NAME) , Contract Administrator
(ADDRESS)
ARTICLE XXXIV CONTRACT
The two parties to this AGREEMENT, who are the before named CONSULTANT and the before named LOCAL AGENCY, hereby agree that this AGREEMENT constitutes the entire AGREEMENT which is made and concluded in duplicate between the two parties. Both of these parties for and in consideration of the payments to be made, conditions mentioned, and work to be performed; each agree to diligently perform in accordance with the terms and conditions of this AGREEMENT as evidenced by the signatures below.
May 2023
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
ARTICLE XXXV SIGNATURES
(Name of LOCAL AGENCY) (Name of CONSULTANT)
(Signature)
(Name of Signer)
(Signature)
(Name of Signer)
Date: Date:
REQUEST FOR INFORMATION FORM: All questions must be received in writing using this Request for Information form.
Project Name: CMSR Engineering Services RFP
Firm Requesting Info:
Requestor’s Name:
Requestor’s Phone:
Requestor’s email:
Question/Comment/Concern (Please clearly express below):
FOR CITY USE: RFI #_________
ATTACHMENT D
Consultant in a
Management Support Role
City Engineer
Tall Tree Engineering Inc.
99 S. Main St.
Willits, CA. 95490
707.841.2001
TABLE OF CONTENTS
1. Cover Letter...................................... 5
2. Firm Qualifications ............................ 7
3. Demonstrative Experience.............. 18
4. Acknowledgments ......................... 20
5. Professional References.................. 22
6. Fee Schedule .................................. 22
`
1. COVER LETTER
City of Willits
Consultant in a Management Support Role - City Engineer Proposal Submitted by:
Tall Tree Engineering (TTE)
99 S Main St, Willits, CA 95490
Local Expertise. Proven Results. Immediate Readiness.
Dear Mr. Kolon,
As a long-time resident of Willits and its former Assistant Engineer, I am happy to submit this proposal for the Consultant in a Management Support Role - City Engineer position. My unique background and deep connection to our community make me ideally suited to serve Willits in this crucial role.
For nearly four years, I served as Willits' Assistant Engineer. During that time, I immersed myself in every aspect of our city's infrastructure, from water systems to road improvements.
I've walked our streets, studied our plans, and worked alongside the staff who keep our city running. This experience has given me an unparalleled understanding of Willits' engineering needs, challenges, and opportunities.
Since founding Tall Tree Engineering (TTE) in 2020, I've expanded my expertise while maintaining my commitment to our local community. As a certified DBE firm, we've cultivated strong relationships with Caltrans and other state agencies, enhancing our ability to navigate complex regulatory landscapes.
I'm ready to hit the ground running from day one, with little learning curve required. My existing relationships with city staff, local contractors, and regional agencies mean we can move forward efficiently on pressing issues.
My vision for this role goes beyond traditional engineering. I see it as an opportunity to:
Leverage my intimate knowledge of Willits
Bring innovative solutions that respect our town's constraints Ensure communication between city departments, residents, and external agencies Maximize the impact of every dollar in our infrastructure budget Choosing me for this role means selecting someone who is not just an engineer, but a neighbor deeply invested in Willits' future. I'm excited about the opportunity to continue serving our community in this expanded capacity. Thank you for your consideration.
Sincerely,
Susanne Loutsis P.E.
Pres./Principal Civil Engineer
Tall Tree Engineering, Inc.
99 S. Main St. Willits, CA. 95490
707.841.2001
[email protected]
2. FIRM QUALIFICATIONS
Background of the Firm
TTE was founded in 2020 by Susanne Loutsis, PE and Dustin Fredricey, PE, who serve as the firm's principal professional engineers and owners. As a small, hands-on company, TTE offers the City of Willits direct access to high-level expertise without the overhead costs of larger firms. Because our primary office in Willits we can provide rapid response times and a nuanced understanding of local challenges. This structure allows us to maintain low overhead costs while providing comprehensive engineering services.
Year CEC Established: 2020
Type of Organization: S Corporation, Disadvantaged Business Enterprise (DBE) Certification #51061, SB-PW Certification # 2037029
Legal Firm Name: TTE, Inc.
Associations:
California Department of Transportation (Caltrans) Calmentorship Program participant American Society of Engineers (ASCE) active member
2024 Pavement Preservation Academy certificate holder California Geotechnical Engineering Association (CalGeo) active member Applicable Staff:
Professional Civil Engineers - 2
Licensed Storm Water Designer, QSD– 2
Licensed Storm Water Practitioner,QSP–2
Engineering Technician – 1
Administrative Assistant –1
Capability Summary
Immediate Commencement: Immediate Commencement: Ms. Loutsis is fully prepared to begin work without delay upon contract execution. Our readiness is based on several key factors:
Existing Local Presence: As a Willits-based firm, we have no relocation or setup time, allowing for an immediate start.
Familiarity with City Systems: Susanne Loutsis' previous role as Assistant Engineer for Willits means we're already familiar with city processes, key personnel, and existing infrastructure, minimizing onboarding time.
Current Availability: We have strategically allocated our resources to ensure immediate availability for this contract.
Pre-prepared Resources: We're ready to assemble relevant local data, historical project information, and applicable regulations.
Established Relationships: Our existing connections with city staff, local contractors, suppliers, and regulatory agencies will facilitate quick project initiation. Flexible Scheduling: Ms. Loutsis is cross-trained and ready to adapt to the City's most pressing needs from day one.
Up-to-date Certifications: All necessary professional certifications and licenses are current and in good standing.
Local Knowledge: Ms. Loutsis possesses extensive, firsthand experience with Willits' infrastructure and unique municipal needs. This expertise is rooted in her nearly four-year tenure as Assistant Engineer for the City of Willits. Her role as Assistant Engineer also provided comprehensive insight into Willits' long-term infrastructure goals, budget constraints, and regulatory challenges. This intimate understanding of the City's engineering landscape enables TTE to offer tailored solutions that align with Willits' specific needs, priorities, and resources while having the necessary credentials to act as the City Engineer of record.
Capability Summary Continued
Insurance: TTE fully meets and exceeds all City insurance requirements as specified in the RFP. Comprehensive Expertise: Ms. Loutsis’ experience spans a wide range of municipal engineering disciplines, including but not limited to water systems, wastewater management,
stormwater infrastructure, street improvements, and other critical public works projects.
Caltrans and Federal/State Funding Experience: As a
certified DBE firm, TTE is well-versed in Caltrans procedures and federally funded projects. Susanne Loutsis, P.E.,
completed a 5-day Caltrans Local Assistance Workshop and successfully applied for the East Valley Road Replacement Project while at the City of Willits.
On-Call Management: Ms. Loutsis can ensure rapid and effective response to on-call requests.
Her approach includes:
A dedicated 24/7 emergency contact line for immediate response Flexible scheduling to accommodate urgent needs and ongoing projects Engineer of Record: Susanne Loutsis, P.E., is highly qualified to serve as Engineer of Record, bringing over a decade of civil engineering
experience in both public and private sectors. Her
professional engineering license, extensive
municipal experience, and deep understanding of
local infrastructure make her well-equipped to
take on this responsibility
City Engineer Qualifications
TTE’s founder, Susanne Loutsis P.E., is a dedicated professional engineer with over a decade of experience in both the private and public sectors. Foremost, Ms. Loutsis served as the Assistant Engineer for the City of Willits for nearly four years. During that time, she had the opportunity to develop as an engineer, understand how a small municipality operates, and see the challenges they face. As the Assistant Engineer, Ms. Loutsis was able to prepare, present, and exchange project information as a public representative at federal, state, and local levels. She also managed engineering projects through all phases, worked with interdepartmental staff to assist with federal, state, and locally regulated compliance programs, conducted technical studies and designed construction level capital improvement projects. While at the City of Willits, Ms. Loutsis assisted in the development of the annual engineering department fiscal year budget. She served the public by acting with outside agencies and private developers, provided plan review and collaborated with city engineering staff to develop project priority lists and attended Technical Advisory Committee meetings. Now, as the President and as a Principal Civil Engineer of TTE, her technical, managerial, and now directorial experience have prepared Ms. Loutsis to act as a City Engineer for the City of Willits.
Key Experience Summary
Civil Engineer in Responsible Charge
Resident Engineer and Project Manager
Comprehensive Construction Documents
Knowledge of Local Conditions
Project Stakeholder Experience
Municipal Bidding Process Experience
Acquainted with Willits City Staff
Public and Private Sector Experience
Understands Civic Infrastructure Needs
Susanne Loutsis, P.E.
Pres. / C.F.O/ Civil Engineer
[email protected]
99 S. Main St. Willits, Ca.
707.841.2001
Credentials and Qualifications
California Registered Civil Engineer (C91288)
Stormwater Design & Management
QSD, QSP/QISP, Caltrans (WPCM)
Educational History
Environmental Resources Engineering (B.S.)
Cal Poly Humbolt
TTE Inc., Pres. / C.F.O. / Principal Civil Engineer 2020-Present Business Direction and Management: Review and Negotiation of All Contract Documents, Oversee Business Finances, Business Development, Delegate Work to Employees, Provide Business Direction Construction Management: Review Contractor Bid Documents, Review Project Schedules, Review Submittal Documents (Shop Drawing and Material Mixes), Participate in Stakeholder Meetings, Process Change Orders, Maintain Project Records, Review Department of Industrial Relations (DIR) Prevailing Wage Documentation, Review and Process Invoices, Prepare and Submit Project Close-Out Documentation Public Works Project Design and Specifications: Prepare and Review Public Works Capital Improvement Designs Based on Local Municipal Standards and Caltrans Standard Plans and Standard Specifications, Engineer’s Cost Estimates, Conduct Topographic and Construction Staking Surveys and Plans, Provide Regulatory Compliance Assistance, Coordination, and Apply for Regulatory Permits Special Studies and Technical Reports: Conduct Research, Provide Calculations, Check and Apply Regulatory Requirements to Projects, Prepare and Submit Technical Reports Construction Inspection and Observation: Preparation of Daily Inspection Reports, Calculate Pay Quantities, Facilitate Materials Testing Activities, Coordinate Construction Activities with Field Crews, Assure Conformance to Approved Project Plans and Specifications
RHYZL Inc., Associate Engineer 2019-2020
Structural Engineering: retaining wall design, seismic force resistance systems for light wood frame residential and commercial buildings, beam and column retrofit design, foundation designs and special inspections Hydrology and Hydraulic Design: hydrology calculations and analysis, hydraulic sizing of pipes and channel ways, construction documents and technical report writing Commercial Site Development: civil site work layouts, design, and improvements City of Willits, Assistant Engineer 2016-2020
Public Representation: Present Project Information to City Council and Communities Members, Acted as Liaison between the City of Willits and Various State and Federal Organizations, Write Project Summary Reports, and Attend Stakeholder Meetings
Project Management and Public Works Project Design and Specifications: Construction Inspections and Observations, Special Studies and Technical Reports, Project Prioritization Development, Develop Budgets for CIPs, Prepare Applications for State and Federally Funded CIP Projects Adobe Associates Inc Staff Engineer 2015-2016
Civil Engineering Design Produce Construction Plans for Residential Land Development, Conduct Hydrology and Hydraulic Studies, AutoCAD Civil 3D, SWPPP Inspections and Reporting Other Qualifications, Experience, and Community Involvement
Internships
• City of Willits
• GHD, Santa Rosa, CA.
• North Coast Resources Water Quality Control Board, Santa Rosa, CA. • Cal Poly Humboldt Energy Independence Fund (HEIF), Arcata, CA. Mendocino County Special Inspector, 2020-Current
Caltrans Local Assistance Federally Funded Program Workshop Attendee 2018 American Society of Civil Engineers (ASCE), Redwood Branch Secretary 2021-2022
City Engineer Role
Strategy for Balancing Multiple Priorities & Projects:
1. Prioritization:
Regularly review and adjust project
priorities in consultation with city
leadership to ensure alignment with
evolving municipal needs.
2. Resource Allocation:
Maintain a flexible staffing model to
leverage the city’s on-call consultants’
network and city staff for tasks or to
handle peak workloads.
3. Efficient Project Management:
Use project management tools to track
progress and deadlines.
4. Regular Communication and Reporting:
Establish weekly status meetings with
key city stakeholders to ensure
transparency and rapid decisionmaking.
5. Proactive Risk Management:
Anticipate potential bottlenecks or
conflicts and develop contingency plans
in advance.
6. Leverage Local Knowledge:
Utilize Ms. Loutsis' understanding of
Willits' infrastructure and processes to
anticipate challenges and streamline
project execution.
7. Knowledge Sharing:
Cross- check different city departments
on various aspects of Willits' projects to
ensure coverage and continuity.
8. Technology Integration:
Utilize cloud-based collaboration tools
to enable real-time information sharing
and decision-making across projects.
By implementing these strategies,
Susanne Loutsis, P.E. would be wellequipped to effectively manage multiple priorities and projects for the
City of Willits, ensuring efficient use of
resources and timely delivery of critical
infrastructure improvements.
Pavement Improvement Strategy
Susanne's approach to helping the city would encompass the following key areas:
1. Assessment of Current Conditions and Practices:
• Review existing pavement condition data and maintenance history • Analyze historical budget allocations and expenditures for pavement maintenance
2. Implementation of a Robust Pavement Management System:
• Recommend and potentially implement specialized software like StreetSaver • Set up a system for regular pavement condition assessments
3. Development of a Comprehensive Pavement Preservation Plan:
• Create a multi-year plan that balances preventive maintenance, rehabilitation, and reconstruction
• Incorporate a mix of treatment options, including:
- Robust crack sealing program
- Increased use of preventive treatments like slurry seals and microsurfacing - Strategic use of in-place full depth reclamation for cost savings
4. Budget Optimization and Financial Planning:
• Develop scenarios for various funding levels
• Identify potential cost savings treatments
5. In-house Capability Enhancement:
• Assess current staff skills, equipment, and potential availability
6. Data-Driven Decision Making:
• Use data analytics to prioritize projects and optimize resource allocation
8. Stakeholder Engagement and Communication:
• Develop communication strategies to inform city council and residents about the plan By implementing these strategies, Susanne would help Willits develop a more efficient, costeffective, and sustainable approach to pavement management.
Upholding Water Resilience Strategy
Ms. Loutsis is committed to supporting the city's comprehensive water management strategy, with a focus on optimizing existing resources and enhancing infrastructure. In her role as City Engineer, she will assist the city in its ongoing efforts to effectively utilize the groundwater treatment plant as a vital supplement and backup to its reservoir system. Ms. Loutsis understands the importance of maintaining a diverse and resilient water supply, and she will work to ensure that the groundwater treatment plant continues to play a crucial role in the city's water portfolio. Additionally, Ms. Loutsis will provide valuable guidance and oversight for the inflatable dam project, a new initiative for the city's water resource management. Her involvement will be particularly beneficial in navigating the regulatory landscape, especially in fostering a productive working relationship with the Division of Safety of Dams regulator Michelle Holmes, leveraging their combined knowledge to ensure the project's success while meeting all necessary safety and regulatory requirements. Through these efforts, Ms. Loutsis aims to strengthen the city's water infrastructure and enhance its ability to manage water resources effectively in the face of various environmental challenges.
On-Going Wastewater Strategy
The city's Wastewater Treatment Plant (WWTP) has been operating efficiently, consistently meeting regulatory standards and serving the community's needs. As the incoming City Engineer, Ms. Loutsis would bring valuable experience from her studies of the WWTP. This familiarity has provided her with a deep understanding of the facility's current operations and the long-term challenges it may face, including those related to climate change.
Ms. Loutsis plans to work closely with city staff, management, environmental agencies, and community representatives to develop and implement a comprehensive strategy for the WWTP's continued success and climate preparedness. Her approach will focus on:
1. Stakeholder engagement: Regularly consulting with all relevant parties to ensure a holistic understanding of the WWTP's needs, the community's concerns.
2. Long-term planning: Developing a phased, multi-year plan that allows for gradual implementation of infrastructure improvements as needed.
By leveraging her experience and taking this collaborative, long-term approach, Ms. Loutsis will guide the WWTP towards greater resilience, efficiency, and preparedness for climate-related challenges.
Her steady, informed leadership will ensure that the facility continues to meet the community's needs while adapting to potential environmental changes in the years to come.
Stormwater Strategy
Ms. Loutsis recognizes that addressing drainage issues plays a crucial role in preserving the integrity of the city's road infrastructure. Proper stormwater management helps prevent water damage to road surfaces, subgrade erosion, and other waterrelated deterioration of pavements. A proactive approach to solving drainage problems will be an important factor in developing and implementing the city's pavement preservation plan, as it can extend the lifespan of roads, reduce maintenance costs, and improve overall road quality for residents.
Ms. Loutsis acknowledges that several areas in Willits are experiencing significant drainage problems.
One notable example includes:
• Elm Lane and Manor Way: This area has been identified as having persistent drainage issues, likely due to inadequate stormwater infrastructure or topographical challenges.
Ms. Loutsis recognizes that addressing drainage issues is crucial for:
• Protecting public and private property from water damage • Enhancing road safety and longevity
• Improving overall quality of life for Willits residents Ms. Loutsis is committed to prioritizing these areas for assessment and developing targeted solutions, as part of a comprehensive approach to stormwater management in Willits.
3. DEMONSTRATIVE EXPERIENCE
Municipal Engineering Experience
Capital Improvement Projects
Ms. Loutsis' experience and leadership in these projects, particularly those in Willits, demonstrates her comprehensive understanding of the city's infrastructure needs and her ability to manage complex, multifaceted engineering initiatives crucial for a City Engineer role. City of Clearlake Burns Valley Road Rehabilitation Project (Current, Clearlake, Ca.) City of Clearlake Ball Park Streets Rehabilitation Project (2022-2023, Clearlake, Ca.) City of Fort Bragg EV Fleet Charging Station (2023, Fort Bragg, Ca.) West Mendocino Avenue Improvement Project-Phase l (2023, Willits, Ca.) West Mendocino Avenue Improvement Project- Drainage Phase l (2023, Willits, Ca.) San Mateo Parks District ADA Parking Improvement Project (2022, Moss Beach, Ca.) Draft Energy Management Plan (2020, Willits, Ca.)
N. Maple Street Improvement project (2019, Willits, Ca.) Water Treatment Plant Road Slip-out Repair Project (2019, Willits, Ca.) Blosser Lane Storm Drain Replacement Project (2019, Willits, CA) Municipal Water Utility Pump Station Design and Specifications (2019, Willits, Ca.) City Solar Array System Purchase Agreement Project (2019, Willits, Ca.) City of Willits Art Center ADA Parking Improvement Project (2018, Willits, CA Wood Street Electric Vehicle Charging Station Parking Design (2018, Willits, CA) City of Willits VFD Rebate Program Participant, $20k rebates received (2016, Willits, Ca.)
Regulatory Compliance Project Experience
Susanne Loutsis, P.E., is well-suited for the City of Willits City Engineer position based on her regulatory experience in water and wastewater management. She has worked on establishing wastewater permit limits and revising sewer ordinances, showing familiarity with relevant regulations.
Susanne has assessed wastewater treatment facilities and developed programs to meet compliance standards, such as the Wastewater Source Control Program and Sewer Lateral Inspection Program.
Her background in managing these regulatory aspects of municipal water systems would be beneficial in addressing the City of Willits' engineering needs. Disaster Preparedness Assessment Report and Action Plan for City of Willits Wastewater Treatment Facility (2024, Willits, Ca.)
Risk Assessment and Emergency Response Plan for City of Willits Municipal Drinking Water (2023, Willits, Ca.)
Watershed Survey Update (2014 and 2024, Willits, Ca.) California State Department of Safety of Dams Water
Rights Calculating & Reporting (2016-2019, 2022-
2024, Willits, Ca.)
California State Department of Safety of Dams Spring
Operations Plan Development (2023, Willits, Ca.)
Unites States Geologic Survey (USGS) Stream Gauge
Installation Project (2019, Willits, Ca.)
Sewer Lateral Inspection Program Development &
Implementation (2019, Willits, Ca.)
Local Limits Wastewater Study and Program Development for North Coast Regional Water Quality Control Board Compliance (NCRWQCB) (2017, Willits, Ca.) Biosolids to Land Application Reporting for North Coast Regional Water Quality Control Board Compliance (2018, Willits, Ca.)
Title 22 Recycled Water Technical Report for North Coast Regional Water Quality Control Board (NCRWQ) (2017, Willits, Ca.)
Wastewater Treatment Facility Operations and Maintenance Manual update (2016, Willits, Ca.)
4. ACKNOWLEDGMENTS
Addendum
I confirm that this proposal is valid for ninety (90) days from the submission date of September 30, 2024 and
acknowledge receipt of all addenda issued for this RFQ.
Conflict of Interest
TTE takes a proactive and trans
parent approach to handling potential conflicts of interest, recognizing the importance of maintaining ethical standards and public trust, especially given our local presence and existing relationships in Willits. Our strategy includes:
Rigorous Project Screening:
Recusal Protocol:
Open Communication Channel:
- We maintain an open line of communication with City leadership to discuss any concerns or potential conflicts as they arise.
By implementing these comprehensive measures, TTE ensures that our local knowledge and relationships in Willits remain an asset to the City, while maintaining the highest standards of professional ethics and transparency. We believe this approach not only prevents conflicts of interest but also strengthens our ability to serve the City effectively and build public trust.
Financial System Requirements
Our firm acknowledges and confirms our ability to meet all financial and financial system requirements as specified in the Local Assistance Procedures Manual (LAPM). We have thoroughly reviewed these requirements and have the necessary systems and processes in place to ensure full compliance. Furthermore, we commit to supplying all required financial forms and documentation promptly upon request or as mandated by the project guidelines. Our team is well-versed in the LAPM's financial reporting standards and is prepared to provide accurate, timely, and comprehensive financial information throughout the duration of the project.
Agreement
TTE proposes no exceptions to the indemnification, insurance, or other standard terms of the sample agreement:
No exception to standard terms.
We have reviewed the entire sample agreement carefully and find the terms acceptable as written.
5.PROFESSIONAL REFERENCES
1. Scott Herman, Utilities Superintendent, City of Willits, 707. 459.7129
2. Michelle Holmes, Senior Engineer, State of California Division of Safety of Dams, 916. 565.7814
3. Adeline Leyba, Public Works Director, City of Clearlake, 707.974.8201 ext. 341
6.FEE SCHEDULE
We have mailed a sealed envelope containing our fee schedule for your consideration. This rate is effective from January 1, 2024, through December 31, 2025, reflecting Ms. Loutsis' expertise and the value she brings to your projects. While we typically include a comprehensive breakdown of reimbursable expenses, however for this particular agreement, we understand that only Ms.
Loutsis' professional services are required for the position.
Date
By signing this form, the undersigned hereby acknowledges the receipt of the Addendum 1. *A COPY OF THIS ADDENDUM MUST BE PROVIDED WITH YOUR RFQ/RFP SUBMISSION*
ADDENDUM
ACKNOWLEDGED
Firm Name:
Representative Name:
(this person must have legal authority to enter into a bid for this firm) Business Address:
Business Phone No.:
Representative's Signature
By signing, I represent that I have reviewed the this addendum, along with any attachments and it is my opinion that this addendum has provided clear communication as to the expectations of such.
Tall Tree Engineering
Susanne Loutsis
99 S. Main St. Willits, Ca. 95490
707.841.2001
09/30/24
Local Assistance Procedures Manual EXHIBIT 10-U
Consultant Management Conflict of Interest Statement
January 2018
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EXHIBIT 10-U CONSULTANT IN MANAGEMENT SUPPORT ROLE CONFLICT OF INTEREST AND CONFIDENTIALITY STATEMENT1
RFP/RFQ PROCUREMENT NUMBERS (if applicable):
PROJECT NAME (and FPN, if applicable)2: On-call contract APPLICABILITY: To be filled out by local agency consultants in management support role.
I am an employee of a consultant under contract to the local agency that is responsible for the procuring and administering of one or more consultant contracts containing either Federal or State funds.
I am in a management position with the local agency, my title is listed below and I have attached my duty statement and scope of work.
I hereby certify as follows:
1. I recuse myself from all potential conflicts of interest.
2. I will not directly or indirectly participate in, manage, or oversee any consultant selection procurement process in which the consulting firm of which I am employed is competing as a consultant or subconsultant.
3. I will not directly or indirectly influence any employee, staff member, or other individual participating in any consultant selection procurement process in which the consulting firm of which I am employed is as a consultant or subconsultant.
4. I will not directly or indirectly participate in, manage, or oversee any local agency contract that is with the consulting firm of which I am employed, regardless of whether the involvement of my employer in the contract is as a consultant or subconsultant.
Among other things, this includes my not being involved in approving changes in the schedule, scope, deliverables or invoices.
5. I understand that if I am involved in any local agency contract that is with the consulting firm of which I am employed, in violation of 1. or 2. above, that local agency contract will no longer be eligible for Federal or State reimbursement because of my involvement.
I certify that I have read and understand my responsibilities per 23 CFR 172.7(b)(5) I fully understand that it is unlawful for a person to utilize any organization name (i.e. local agency) or auxiliary organization information, which is not a matter of public record, for personal gain.
1 Each consultant staff working in a management support role shall complete a separate form. 2 For on-call contracts or contracts for multiple projects, indicate accordingly.
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EXHIBIT B
Local Assistance Procedures Manual EXHIBIT 10-U
Consultant Management Conflict of Interest Statement
January 2018
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I have read and fully understand all of the above.
Date: Signature:
Name:
Title:
Consultant Firm/Sole Proprietor:
REVIEWED BY PUBLIC WORKS DIRECTOR OR AUTHORIZED LOCAL AGENCY
REPRESENTATIVE
I have reviewed the foregoing “Conflict of Interest and Confidentiality Statement” and will ensure:
That the foregoing named local agency consultant who is under contract and in a management support role with our local agency, abides by the foregoing terms and conditions; That should the foregoing named local agency consultant, who is under contract and in a management support role with our local agency, violate any of the foregoing terms and conditions, the Caltrans DLAE will be notified and such violation will be considered a breach of ethics and could be a basis for ineligibility of State or Federal project funds.
The procedures followed to procure and execute the contract, between the local agency and the consulting firm of which I am employed, comply with all federal and state requirements. Also this contract has a specific date from to .
Date: Signature:
Name:
Title:
Department/Local Agency:
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10/09/24
Susanne Loutsis
President/Principal Civil Engineer
Tall Tree Engineering
Local Assistance Procedures Manual EXHIBIT 10-U
Consultant Management Conflict of Interest Statement
January 2018
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REVIEWED/CONCURRENCE BY FEDERAL HIGHWAYS
I have reviewed the foregoing “Conflict of Interest and Confidentiality Statement” and supervisor’s statement.
I concur that the consultant, who is under contract and in a management support role with the local agency, does not appear to present a conflict of interest. The local agency and the consultant should be considered eligible for federal reimbursement.
I do not concur as I believe that the consultant, who is under contract and in a management support role with the local agency, does appear to present a conflict of interest.
Date: Signature:
Name:
Position:
Distribution: 1) Copy to: DLAE for each Federal/State funded project 2) Copy to be returned to Local Agency by DLAE with FHWA approval Ƒ
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Local Assistance Procedures Manual EXHIBIT 10-T
Conflict of Interest & Confidentiality Statement
LPP 18-01 Page 1 of 3
January 2019
EXHIBIT 10-T CONFLICT OF INTEREST AND CONFIDENTIALITY STATEMENT RFP/RFQ PROCUREMENT NUMBERS:
PROJECT NAME:
APPLICABILITY: Applicable to local agency consultant procurements which will contain Federal or State funds in the consultant contract.
Ƒ I am an employee of the local agency that is involved in this procurement.
Ƒ I am an employee of a consultant under contract to the local agency that is responsible for this procurement but I am not in a management position with the local agency.
Ƒ I have a personal, financial, or business interest in past employment activity or a personal relationship regarding the firms (including subconsultants) that are the subject of this evaluation. A brief description is provided on the back of this form.
Ƒ I certify that I have no current contractual relationship with any of the firms (including subconsultants) that are the subject of this evaluation.
Ƒ I certify that I have no personal or financial interest and no present or past employment activity or personal relationship or prior contractual relationship which would be incompatible with my participation in this solicitation process and I am fully able to give full, fair and impartial consideration to all proposals/bids as an appointee to the related evaluation.
Ƒ I certify that I have read 23 CFR 172.7(b)(4) below and I agree not to participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved.
23 CFR 172.7(b)(4)
(4) Conflicts of interest. (i) A contracting agency shall maintain a written code of standards of conduct governing the performance of their employees engaged in the award and administration of engineering and design related services contracts under this part and governing the conduct and roles of consultants in the performance of services under such contracts to prevent, identify, and mitigate conflicts of interest in accordance with 2 CFR 200.112, 23 CFR 1.33 and the provisions of this paragraph (b)(4).
(ii) No employee, officer, or agent of the contracting agency shall participate in selection, or in the award or administration of a contract supported by Federal-aid funds if a conflict of interest, real or apparent, would be involved.
Such a conflict arises when there is a financial or other interest in the consultant selected for award by:
(A) The employee, officer, or agent;
(B) Any member of his or her immediate family;
(C) His or her partner; or
(D) An organization that employs or is about to employ any of the above.
Local Assistance Procedures Manual EXHIBIT 10-T
Conflict of Interest & Confidentiality Statement
LPP 18-01 Page 2 of 3
January 2019
(iii) The contracting agency's officers, employees, or agents shall neither solicit nor accept gratuities, favors, or anything of monetary value from consultants, potential consultants, or parties to subagreements. A contracting agency may establish dollar thresholds where the financial interest is not substantial or the gift is an unsolicited item of nominal value.
(iv) A contracting agency may provide additional prohibitions relative to real, apparent, or potential conflicts of interest.
(v) To the extent permitted by State or local law or regulations, the standards of conduct required by this paragraph shall provide for penalties, sanctions, or other disciplinary actions for violations of such standards by the contracting agency's officers, employees, or agents, or by consultants or their agents. (vi) A contracting agency shall promptly disclose in writing any potential conflict of interest to FHWA.
Ƒ I fully understand and agree to immediately disqualify myself as soon as I am aware of a conflict of interest that may compromise my fair and impartial consideration of the proposals/bids.
Ƒ I certify that I will hold in the strictest confidence all bids, proposals, correspondence, memoranda, working papers, or any other media which has any bearing on, or disclose any aspect of, any respondent or potential respondent to the RFP/RFQ above. I will not discuss the evaluation process with anyone not involved in the evaluation process until its completion.
Ƒ I fully understand that it is unlawful for a person to utilize any organization name or auxiliary organization information, which is not a matter of public record, for personal gain.
Ƒ I fully understand that any violation of the above is a basis for disciplinary action, up to and including termination or referral to the appropriate authorities for further investigation.
Ƒ I am aware that the following firms and subconsultants/subcontractors have submitted proposals in response to the above referenced solicitation:
List firms including subconsultants/subcontractors:
1. 2.
3. 4.
etc.
Local Assistance Procedures Manual EXHIBIT 10-T
Conflict of Interest & Confidentiality Statement
LPP 18-01 Page 3 of 3
January 2019
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Date: Signed:
Name:
Title:
Dept./Local Agency:
Employer:
CONTRACT ADMINISTRATOR’S REVIEW
I have reviewed the foregoing “Conflict of Interest and Confidentiality Statement” and have determined, according to the information provided, that this individual:
does not have a conflict of interest and can participate in the “Selection Panel”
does have a conflict of interest and cannot participate in the “Selection Panel” Date: Signed:
Name:
Title:
Dept./Local Agency:
Employer:
Distribution: Original – Local Agency Consultant File
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Item No. 9c
Meeting Date: January 8, 2025
AGENDA SUMMARY REPORT
To: Honorable Mayor and Council Members
From: Dusty Duley, Community Development Director
Agenda Title: REVIEW AND APPROVE THE CITY OF WILLITS 2023 GENERAL PLAN AND HOUSING ELEMENT ANNUAL PROGRESS REPORTS.
Type: Presentation Consent Regular Agenda Public Hearing Urgent Time: 15 minutes.
Summary of Request: Staff recommends that the City Council review and approve, by Resolution, the 2023 General Plan Annual Progress Report and the 2023 Housing Element Annual Progress Report (APR).
Government Code Section 65400 and 65700 requires that all cities and counties submit an annual report on the status of the General Plan and progress on its implementation to their legislative bodies, the Governor’s Office of Land Use and Climate Innovation (LCI) and Department of Housing and Community Development (HCD).
LCI uses the General Plan APR to help identify how local planning activities relate to statewide planning goals and policies. There is no required format for reporting on the General Plan other than identifying progress made for all General Plans chapters within the last calendar year, with exception of the Housing Element. HCD provides a standard template for the Housing Element APR to gauge efforts to fulfill statutory requirements for reporting on housing information-such as housing production and affordability, implementation of Housing Element programs, and local efforts to remove governmental constraints to the development of housing. Most notably, the Housing Element APR includes a tabulation of the City’s progress toward the eight-year Regional Housing Needs Assessment (RHNA) allocation, which is further detailed in the attached report.
The deadline to submit the report each year is April 1st. However, there is no penalty for submitting the APR after the deadline.
Although the General Plan and Housing Element APRs are State-mandated reports (for Staterequired long range policy documents), they also serve as useful tools for providing Council and the community with annual updates regarding implementation of the City General Plan and Housing Element goals and policies. The City General Plan serves as the City’s comprehensive long-range policy document that provides guidance to City decision-makers on allocating resources and guiding the City’s future physical development.
Upon acceptance by City Council, these reports will be forwarded to LCI and HCD for their action.
Attachments
Att #1 – 2022 General Plan Annual Progress Report.
Att #2 – 2022 Housing Element Annual Progress Report.
Recommended Action: Adopt the accompanying Resolution to approve the City of Willits 2023 General Plan and Housing Element Annual Progress Reports.
Alternative(s): None recommended.
Fiscal Impact: There is no fiscal impact associated with City Council Review and City submission of these annual reports to HCD and LCI.
Personnel Impact: No additional staff time is anticipated after report submission. However, if state agencies request revisions to the report(s), the Community Development Departments staff will need to complete the requested report revisions.
Identified City Council Conflict of Interest: None.
2021 Adopted Goals: This item relates to Goal #1 for the Community Development Department…Complete an update to the City’s General Plan to be used to guide future development within the City including encouragement of housing opportunities and sustainable economic development. Estimated timeframe is 3-5 years.
California Environmental Quality Act: The General Plan APR is a reporting document and does not create or alter policy. The content is provided for informational purposes only and is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15306.
This Item Relates to the following General Plan Element : N/A Land Use Circulation Conservation and Open Space Noise Housing Public Services and Facilities, Parks and Recreation Economic Development
Reviewed by: City Manager City Attorney Assistant City Manager City Clerk Finance Director Human Resources
Council Action: Approved Denied Other: ________________________________ Records: Agreement Resolution #______ Ordinance #______ Other _______ Resolution No. 2025- January 8, 2025
RESOLUTION NO. 2025-__
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILLITS TO APPROVE THE 2023 GENERAL PLAN ANNUAL PROGRESS REPORT AND 2023 HOUSING ELEMENT ANNUAL PROGRESS REPORT.
WHEREAS, Government Code Section 65400 and 65700 mandates that all cities and counties submit an annual report on the status of the General Plan and progress on its implementation to their legislative bodies, known as a General Plan Annual Progress Report (APR); and
WHEREAS, the General Plan Annual Progress Report intends to summarize the status of the Willits General Plan, introduce key development activities and projects that were implemented or completed in the 2023 Calendar year, and examine the City’s progress in meeting its share of regional housing needs; and
WHEREAS, the 2022 General Plan Annual Progress Report includes reporting for progress pertaining to the City’s Housing Element; and
WHEREAS, the State of California Housing and Community Development Department (HCD) requires municipalities submit information that allows HCD to track any impediments to the construction of new housing that may exist and to monitor progress toward satisfaction of statewide housing needs and goals; and
WHEREAS, this 2023 General Plan Annual Progress Report will be submitted with the Housing Element Progress Report for state agency review after receiving City Council approval; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Willits approves the 2023 General Plan Annual Progress Report and 2023 Housing Element Annual Progress Report, and hereby authorizes the Community Development Director, or his/her designee, to submit these Annual Progress Reports for state agency review.
The above and foregoing Resolution was introduced by Councilmember __________ seconded by Councilmember ____________ and passed and adopted at a regular meeting of the City Council of the City of Willits, held on the 8th day of January 2025, by the following vote:
AYES:
NOES:
ABSENT:
______________________________
Larry Stranske, Mayor
ATTEST: City Council of the City of Willits
____________________________
DELORES PEDERSEN
City Clerk
111 E COMMERCIAL STREET, WILLITS CA 95490 • PHONE: 707-459-7112 • FAX: 707-459-1562 • www.https://cityofwillits.org/
CITY OF WILLITS
GENERAL PLAN
ANNUAL PROGRESS REPORT
2023
City of Willits
111 E. Commercial Street
Willits, CA 95490
Prepared:
December 11, 2024
City Council Presentation:
January 8, 2025
Table of Contents
Section Page
1. INTRODUCTION ........................................................................................ 3
1.1 GENERAL PLAN UPDATE REQUIREMENTS PER STATE LEGISLATION................................... 4
1.2 GENERAL PLAN ELEMENTS ........................................................................................... 5
2. GENERAL PLAN UPDATES AND IMPLEMENTATION MEASURES ........................ 5
2.1 LAND USE ELEMENT: ................................................................................................... 5
2.2 SAFETY ELEMENT ........................................................................................................ 7
2.3 CIRCULATION ELEMENT............................................................................................... 8
2.4 CONSERVATION AND OPEN SPACE ELEMENT .................................................................. 8
2.5 PUBLIC SERVICES AND FACILITIES, PARKS AND RECREATION ELEMENT ............................. 9
2.6 NOISE ELEMENT........................................................................................................ 11
2.7 ECONOMIC DEVELOPMENT ELEMENT........................................................................... 11
2.8 HOUSING ELEMENT ................................................................................................... 13
3. HOUSING ELEMENT ANNUAL PROGRESS REPORT........................................ 14
3.1 MEETING THE REGIONAL HOUSING NEED..................................................................... 14 TABLES
Table 2 Future Housing Needs, 2018–2027.......................................................................................... 14 Table 3 Comparison of Regional Growth Need and Residential Sites ................................................. 14
ATTACHMENTS
ATTACHMENT 1: 2023 HOUSING ELEMENT ANNUAL PROGRESS REPORT ............................ 14 2023 Willits General Plan Annual Progress Report
Community Development Department Page 3
CITY OF WILLITS
GENERAL PLAN ANNUAL PROGRESS REPORT
(January 1, 2023, to December 31, 2023)
1. INTRODUCTION
Government Code Section 65400 and 65700 requires that all cities and counties submit an annual report on the status of the General Plan and progress on its implementation to their legislative bodies, known as a General Plan Annual Progress Report (APR). The State does not have a standardized form or content guidance for General Plan APRs, so each municipality may cater the report to their own unique style. The deadline to submit the report each year is April 1. However, there is no penalty for submitting the APR after the deadline.
State law also requires that all cities and counties create an annual progress report that describes the community’s progress toward implementing their Housing Element. This Housing Element Annual Progress Report (HPR) has detailed data requirements, and the State has developed a standardized spreadsheet format for submitting the required data. The HPR also fulfills certain statutory requirements to report other housing information, such as the City’s progress toward meeting its share of regional housing needs, certain rezoning activities, actions taken towards completion of Housing Element programs, and local efforts to remove governmental constraints to the development of housing per Government Code Sections 65584.3(c) and 65584.5(b)(5).
Since its adoption in 1992, the City has worked diligently to implement the policies outlined in the Vision 2020 General Plan and has had many successes over the years. The various departments that comprise the City of Willits have completed many projects and are striving to achieve ongoing objectives and project goals related to each of the General Plan Elements. This report intends to summarize the status of the Willits Vision 2020 General Plan, introduce key development activities and projects that were implemented or completed in the 2023 Calendar year, and examine the City’s progress in meeting its share of regional housing needs.
This document is a reporting document and does not create or alter policy. The content is provided for informational purposes only and is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15306. Upon acceptance by City Council, this APR report will be forwarded to the State to supplement the HPR after the due date of April 1, 2024. 2023 Willits General Plan Annual Progress Report
Community Development Department Page 4
1.1 GENERAL PLAN UPDATE REQUIREMENTS PER STATE LEGISLATION The State has adopted several amendments to Government Code §65302 that has added new statutory requirements to the required Elements of the General Plan or in General Plan APRs as follows:
Senate Bill (SB) 379 – Adopted 2015 : Requires the Safety Element to include a climate change vulnerability assessment, measures to address vulnerability, and comprehensive hazard mitigation and emergency response strategies. Addressing these topics is required upon the next revision of a Local Hazard Mitigation Plan (LHMP) after January 1, 2017, or, if the local jurisdiction has not adopted a LHMP prior to January 1, 2022.
Senate Bill (SB) 1000 – Adopted 2016 : Requires either a separate new Environmental Justice Element or related goals, policies, and objectives integrated into other Elements, if the jurisdiction has a disadvantaged community according to the Office of Environmental Health Hazard Assessment’s CalEnviroScreen tool. . The only disadvantaged community in or near the City of Willits, as defined by State law, is the Sherwood Valley Rancheria. SB 1000 is triggered when local governments adopt or revise two or more General Plan elements concurrently. Upon adoption of the revised Land Use Element(2024) and Safety Element (2025), the City of Willits may either comply with SB 1000 by developing a stand-alone Environmental Justice Element (EJ Element) as part of their General Plan, by adopting environmental justice policies incorporated in other elements throughout the General Plan, or through a hybrid approach that does both.
Senate Bill (SB) 1035 – Adopted 2018 : Amends the timing of updates related to the original bill language in SB 379 (see above). It requires jurisdictions to review and, if necessary, update the Safety Element upon each revision of the Housing Element or LHMP. This should be done at least once every eight years to identify new information not available during the previous revision relating to flood and fire hazards and climate adaptation and resiliency strategies.
Senate Bill (SB) 99 – Adopted 2019 : Requires cities, upon the next revision of the Housing Element on or after January 1, 2020, to review and update the safety element to include information identifying residential developments in hazard areas that do not have at least two emergency evacuation routes.
Assembly Bill (AB) 747 – Adopted 2019 : Requires jurisdictions to, after January 1, 2022, review and update the Safety Element of their General Plan as necessary to identify evacuation routes and evaluate their capacity, safety, and viability under a range of emergency scenarios. A jurisdiction that has adopted an LHMP, Emergency Operations Plan (EOP) or other document that fulfills these objectives may summarize and incorporate that document into the Safety Element to comply with AB 747.
Assembly Bill (AB) 168 – Adopted 2020 : Requires new information on the City’s responsibility to consult with California Native American tribes, and to identify and protect, preserve, and mitigate impacts to specified places, features, and objects, pursuant to specified law when adopting or amending the General Plan or Open Space Element. Most recently, SB 1425 requires every local agency review and update its local Open Space Element by January 1, 2026.
Upon the adoption of any update to an element of the General Plan or a comprehensive General Plan Update, the City of Willits will ensure that each and every statutory requirement is met. 2023 Willits General Plan Annual Progress Report
Community Development Department Page 5
1.2 GENERAL PLAN ELEMENTS
State law requires all cities and counties in California to adopt a General Plan, comprised at minimum of seven mandated “Elements,” that address physical development within its jurisdiction and include: land use, circulation, housing, conservation, open space, noise, and safety. Each of the seven mandatory general plan elements were prepared prior to adoption of the General Plan Guidelines established by the Office of Planning and Research.
Table 1 indicates the date that each of the
elements were last updated in the Willits
Vision 2020 General Plan, and which
elements are currently in the process of an
update.
2. GENERAL PLAN UPDATES AND IMPLEMENTATION MEASURES
Local governments are required to keep their General Plans current and internally consistent. Although General Plans must be kept current, there is no specific requirement that a local government update its General Plan on a particular timeline, with the exception of the Housing Element, which is formally required to be updated every eight years. Between January 1, 2023, and December 31, 2023, the City successfully implemented several initiatives and is undergoing multiple planning projects set for completion in the near future that correspond to specific Elements of the General Plan. Following the adoption of the updated Safety Element, the City plans to perform comprehensive updates to the Zoning Ordinance to accommodate changes made in land use designations and standards contained in the General Plan. This project is anticipated to begin in 2025 and continue throughout 2026.
2.1 LAND USE ELEMENT:
The Land Use Element sets forth specific goals, objectives, policies, and maps to guide the intensity, location, and distribution of land uses. The Land Use Element was last updated in 1992 with the adoption of the Willits General Plan Vision 2020.
Land Use Element Update and Sphere of Influence Amendment (Ongoing):
Since 2022, the City has been working with consultants Planwest Partners Inc. to assist in comprehensively updating the Land Use Element and amending the Sphere of Influence. The update accommodates current growth projections, addresses current community issues, and meets new statutory requirements relevant to housing needs. The update also includes an amendment to the City’s Sphere of Influence to include hundreds of acres of residentially zoned land bordering existing City boundaries for the purpose of providing new housing opportunities, and acknowledging long standing municipal utility service connections. Throughout 2023, significant progress was made updating the Land Use Element through
GENERAL PLAN ELEMENT LAST UPDATE
Land Use Ongoing
Safety Ongoing
Circulation 1992
Conservation and Open Space 1992
Noise 1992
Public Services and Facilities 1992
Economic Development 1992
Housing 2019
Table 1. General Plan Elements
2023 Willits General Plan Annual Progress Report
Community Development Department Page 6
various initiatives and engagements. An advisory committee comprising technical experts from City departments, partner agencies, and community members convened four times to provide feedback on project feasibility and direction.
Simultaneously, an online community survey available in both English and Spanish written languages received input from residents of all ages helping to shape policy and provide mapping recommendations used to update the Land Use Element. A community open house event at the Willits Community Center facilitated direct dialogue between stakeholders and City officials, encouraging active participation and information sharing. Complementing these public outreach efforts, a dedicated website served as a centralized hub for project updates, surveys, and informational resources.
Moreover, multiple City Council study sessions were conducted to help facilitate transparency, inform decision-makers, and solicit public input. The City released the Public Draft Land Use Element along with the Draft Environmental Impact Report(EIR) document in mid-2024. The City Council approved the Final EIR and Land Use Element public draft documents on October 23, 2024.
The project was funded through a combination of three grant programs. The three funding sources: Local Early Action Planning Grant (LEAP), Regional Early Action Planning Grant (REAP), and SB2 totaled approximately $260,000. The respective amounts of each funding source and a brief summary of the scope of each grant is provided below.
• Local Early Action Planning (LEAP): $65,000 to update the Land Use Element of the General Plan and complete environmental review pursuant to CEQA.
• Regional Early Action Planning (REAP): $35,364 to supplement the cost of preparing the appropriate CEQA document(s) to support an update to the Land Use Element of the General Plan. An Additional portion of the Mendocino Council of Government’s REAP grant was reallocated to the City of Willits to use as part of the Land Use Element update process.
• SB2: $160,000 to amend the City’s Sphere of Influence boundary to facilitate additional housing opportunities.
The expenditure deadline for the SB2 grant is September 30, 2023, the expenditure deadline for the REAP grant is December 31, 2023, and the deadline for the LEAP grant was extended to December 31, 2024. At this time, the funding for these three grants has been fully utilized and the City has received reimbursement from outside agencies. The project budget is constrained by the total funding of these three grants; however, the City anticipates pursuing additional funding for future project phases beyond the scope of this contract.
As the approved document to amend the Sphere of Influence moves forward for review and processing by the Local Agency Formation Commission (LAFCO), the City anticipates that it may need to revise the proposed amendment per LAFCO instruction. The City plans to perform comprehensive updates to the Zoning Ordinance to accommodate changes made in land use designations and standards contained in the General Plan. This project is anticipated to begin in 2025 and continue throughout 2026. 2023 Willits General Plan Annual Progress Report
Community Development Department Page 7
2.2 SAFETY ELEMENT
The focus of the Safety Element includes identifying safety risks and developing goals, policies, and implementation programs to better address these issues. The Safety Element was last updated in 1992 with the adoption of the Willits General Plan Vision 2020.
2019 Draft Safety Element (Ongoing):
A comprehensive update of the Draft Safety Element was
released for public review in 2020. The Safety Element, and possibly other elements, may need to be amended further to be consistent with any applicable changes made to the Land Use Element. The updated Safety Element will meet
compliance requirements of SB379 and AB2140, and
includes a vulnerability assessment pursuant to SB379,
which identifies the risks that climate change poses to the City of Willits including, but not limited to, an assessment of how climate change may affect the risks identified in the Local Hazard Mitigation Plan (LHMP).
Staff intends to bring the Safety Element update forward mid-2025, as it will likely require further revisions ensuring compatibility amongst other elements of the General Plan.
The City is aware that following the adoption of the updated Safety Element, the staff intends to perform comprehensive updates to the Zoning Ordinance to accommodate changes
made in land use designations and standards contained in the General Plan. This project is anticipated to begin in 2025 and continue throughout 2026
Emergency Operations Plan (Completed in 2024)
The City of Willits Emergency Operations Plan (EOP) Part 1: Basic Plan is a foundational document for emergency management for staff, key partners, and the community. The City Manager serves as the City’s Office of Director of Emergency Services and is responsible for the review, revision, management, and distribution of the EOP annually. The EOP complies with the California Standardized Emergency Management System (SEMS), the National Incident Management System (NIMS), the State Emergency Plan and the California Emergency Services Act (Gov. Code § 8550 et seq.), and Willits Title 2, Chapter 2.44:
Emergency Services. The EOP was adopted by City Council at the September 11th Council meeting and has been shared with the Mendocino County Office of Emergency Services. 2023 Willits General Plan Annual Progress Report
Community Development Department Page 8
Flood Emergency Response Plan (Completed in 2024):
Much of Willits lies in within Special Flood Hazard Areas (SFHA) as mapped by Federal Emergency Management Agency
(FEMA). In these SFHAs, the risk of flooding is present due to an excess of precipitation runoff and damming of drainage areas during major storm events.
Due to limited staffing availability to complete this project in 2023 in-house in the Community Development Department,
consultants with Land Logistics, Inc. assisted with the finalization of the Flood Emergency Response Plan (FERP) Draft, which was adopted by Council on October 23, 2024, and has now become an annex of the City’s Emergency Operations Plan. Development of the FERP required extensive planning and collaboration between key staff representatives and various local and regional agencies. The Plan features a Public Safety Map with organized protocols in the event of a flood.
Staff and consultants assessed whether there were remaining gaps in the Flood Safety Plan and Public Safety Map to finalize this Plan. Throughout this process, staff and consultants have assessed potential gaps in the Flood Safety Plan and Public Safety Map to comprehensively include protocols and procedures for flood emergencies. The FERP remains a critical initiative aimed at enhancing local flood emergency response and bolstering public safety within the City of Willits.
The drafting of this Plan was funded by a grant awarded by the Department of Water Resources (DWR); by completing these plan updates in October 2024, the City was able to meet the final DWR grant reporting deadline of November 30, 2024.
2.3 CIRCULATION ELEMENT
The purpose of the Circulation Element of the Willits General Plan is to provide for a safe and efficient transportation system for existing and proposed uses within the City. This section addresses the street and highway network, railroads, transit services, and bicycle and pedestrian facilities within the community, in accordance with State Planning Law. The Circulation Plan and supporting goals, policies, and implementation actions are consistent with the land use provisions and standards within the General Plan.
The Circulation Element has not been updated since the adoption of the Willits Vision 2020 General Plan.
The City will likely need to identify grant funding to complete a comprehensive update to the Willits General Plan, including the Circulation Element.
2.4 CONSERVATION AND OPEN SPACE ELEMENT
This component of the General Plan focuses on the conservation and management of Willits’ open-space resources. As recognized in State law, open space serves a multitude of functions including: the preservation of natural resources; the managed production of resources such as agriculture; outdoor recreation; and the protection of public health and safety. 2023 Willits General Plan Annual Progress Report
Community Development Department Page 9
Urban Forest Management Plan (2022-2024):
On November 9, 2022, the Willits City Council
unanimously approved adoption of the Urban Forest
Management Plan (UFMP). The plan, under development
by staff and consultant firm Dudek, lays out goals,
objectives, and actions to achieve and enhance a healthy urban forest over the next 30 to 40 years. The project
involved collecting data on an inventory of approximately 320 City owned trees, and an initiative to plant an
additional 165 trees in City limits. Further, the Technical Assessment document included with the plan provides a
model municipal tree ordinance and a model heritage tree ordinance for potential future action by the City Council.
Four guiding principles of the UFMP help create the framework for the management plan and are as follows:
1. Sufficient Resources for the Urban Forest: “The city will provide the financial and human resources to sustainably manage the urban forest”;
2. A Sustainable and Resilient Urban Forest: “The urban forest will be prepared for changing environmental conditions brought on by climate change”;
3. Expand the Urban Forest: “Canopy cover will be increased above current levels for all residents and stakeholders”; and
4. Protect and Preserve the Urban Forest: “City policies and ordinances will contribute to large, healthy trees on both private and public property.”
Staff plans to continue searching for grant opportunities to plant additional trees in City parks and along sidewalks, actively manage existing trees, and develop tree ordinances identified in the UFMP.
One Ordinance the City intends to adopt in 2025 is a Tree Ordinance, as identified in Implementation Policy
3.360 of the Willits General Plan. Currently, consultants (Land Logistics, Inc.), are assisting with the drafting of a Request for Proposal to present to the City Council for review and approval. The Request for Proposal will be funded by the American Rescue Plan Act (ARPA) grant awarded to the City. City Council has allocated $125,000 for drafting a Request for Proposal that will include a broad scope encompassing an update to the Urban Forest Management Plan, broadening the City’s tree inventory, and potentially broadening forms of public outreach such as survey creation and a citizen advisory board.
2.5 PUBLIC SERVICES AND FACILITIES, PARKS AND RECREATION ELEMENT Willits contains 38.34 acres of existing parks and facilities, including recreational parks, neighborhoods parks, green space, and special use facilities. This Parks and Recreation Element establishes goals and policies that address the long-range provision and maintenance of parks and recreation facilities needed to improve the quality of life of existing and future Willits residents. The City of Willits needs additional recreational lands and facilities, and the policies and implementation measures included in this element are responsive to that demand. The overall focus of the Parks and Recreation Element is on providing recreational opportunities and facilities on a regional scale, including trails and waterways; securing adequate funding sources; and increasing tourism and recreation-based businesses. The element also addresses the location, demand, management, and provision of parks and recreation facilities. 2023 Willits General Plan Annual Progress Report
Community Development Department Page 10
Willits Rail Trail Project (Ongoing):
In May of 2022, City staff completed the environmental review process for the Rail Trail Project and filed the Notice of Determination to the State. The project Design Phase has recently been finalized and the City is now in the process of selecting a contractor to construct the project. The objective of the Willits Rail Trail project is to provide a safe, accessible path from the southern end of Willits to the northern end, for non-motorized traffic. The project will construct a 10-footwide paved, ADA accessible, pedestrian and bicycle path, approximately 1.6 miles long, between East Hill Road and East Commercial Street and within the Great Redwood Trail Agency (GRTA), formerly North Coast Railroad Authority
(NCRA) right of way. The trail will be a segment of the proposed Great Redwood Trail, which is currently planned as a continuous trail spanning from the North Bay to the Eureka area. Key design elements include lighting, fencing, security cameras, landscaping, tree plantings, irrigation and three pedestrian bridges at creek crossings. This project is
identified as a priority project in the City Bicycle and Pedestrian Plan, the County Regional Bikeway Plan, County Active Transportation Plan as well as the County Rail with Trail Corridor Plan. The project is anticipated to near completion sometime in 2027. The City is excited to provide an additional recreational opportunity, and an alternative mode of transportation as a means of improving local air quality, which meets the objective of General Plan Policy 3.290.
East Commercial Street Corridor Master Plan (Ongoing):
After multiple open-house events, Council meetings, and public outreach opportunities in 2022-2023, a draft plan was finalized. On February 28, 2024, City Council formally
accepted the East Commercial Street Corridor Master Plan (ECSCMP) and on October 23, 2024, Council formally
adopted the ECSCMP. This Plan encompasses
transportation, pedestrian, and park improvements
throughout the East Commercial Street Corridor. The Clean California Local Grant Program (CCLGP) grant application was submitted in May 2023, awarded in December 2023, and provides funding for several park and pedestrian
improvements’ construction and installation, as described in the ECSCMP.
Staff and consultants continue to search for opportunities to provide funding for the elements of the ECSCMP that are not currently funded by the CCLGP grant. The City’s team of staff and consultants are currently preparing for a potential grant funding opportunity with the U.S. Department of Transportation’s Safe Streets and Roads for All (SS4A) funding program. 2023 Willits General Plan Annual Progress Report
Community Development Department Page 11
Willits Main Street Corridor Enhancement Plan (Ongoing):
The Clean California Local Grant Program (CCLGP) grant
applicant was submitted in May 2023, awarded in
December 2023, and provides funding for several
improvements’ construction and installation listed within the Main Street Plan. The items listed in the Plan that are funded by the CCLGP grant are: 1) Solar pedestrian lights, and 2) City Banner located south of the Oak and Main Street intersection. These improvements will be presented to
Council in December 2024 for approval to be posted for
formal bidding procedures and with Council approval,
these improvements are anticipated to be installed in early 2025.
Staff and consultants continue to search for opportunities to provide funding for the elements of the Plan that are not currently funded by the CCLGP grant. The City’s team of staff and consultants are currently preparing for a potential grant funding opportunity with the U.S. Department of Transportation’s Safe Streets and Roads for All (SS4A) funding program to implement complete streets recommendations contained in the East Commercial Street Corridor Master Plan.
2.6 NOISE ELEMENT
This Noise Element identifies and analyzes projected noise conditions in the community and includes measures to abate or mitigate potential noise levels. Noise levels are actively monitored throughout the community by staff, and staff readily address any noise complaints received. Should complaints regarding undesirable noise levels increase significantly, staff will consider implementation of an ordinance providing control of excessive noise-generating activities. The Noise Element has not been updated since the adoption of the Willits Vision 2020 General Plan. The City will likely need to identify grant funding to complete a comprehensive update to the Willits General Plan, including the Noise Element.
2.7 ECONOMIC DEVELOPMENT ELEMENT
This component of the General Plan intends to strengthen community development activities, enhance economic growth, and reinforce the planning process as a positive part of economic development. An improved local business climate which recognizes sub-regional constraints and opportunities, expansion of the local tax base, and enhanced employment opportunities are benefits of a planning effort that has an emphasis on economic development.
2023 Willits General Plan Annual Progress Report
Community Development Department Page 12
Community Development Block Grant Coronavirus 2&3 (CDBG-CV 2&3) Business Loan Program:
The City of Willits offered business loans funded with
Community Development Block Grants (CDBG) from
the California Department of Housing and Community
Development (HCD). The purpose of these business
loans was to provide flexible financing to businesses
which, in turn, create or retain jobs. In late 2022, the City awarded thirteen local businesses a total of
$470,000 in forgivable loans in order to provide
assistance to mitigate the impacts of the COVID-19
pandemic. All loans were fully forgiven, and CDBG
grant closeout was executed in September 2023. The
City plans on pursuing future available State funds to
provide further economic support to local businesses.
California Conservation Corps Willits Campus (2022):
The California Conservation Corps (CCC) Willits Center
began construction in October 2022, after a 2-year
planning and review process with the City of Willits
and State of California. The Project involves
development of a new CCC operations center at 440
East Hill Road in the City of Willits to accommodate
relocation of existing operations at the CCC Ukiah
Center. The 27.7-acre Willits Center site is located north of East Hill Road, bounded by U.S. Highway 101 Bypass on the east and the former Northwestern Pacific Railroad corridor. The Project consists of a new CCC residential center that includes a total of approximately 64,000 square feet (sf) of new building construction. The Center will include 12 buildings consisting of an administration building, seven dormitories, an education building, a recreation building, a multi-purpose building with kitchen and dining room, a warehouse with work area and a hazardous materials storage room. The Project also includes a paved emergency crew and vehicle staging area and solar photovoltaic array. The facility’s design is based on the prototype and CCC’s residential needs to house 12 Permanent Corpsmembers. The center is intended to be designed to Zero Net Energy (ZNE) per the Governor’s Executive Order (EO) B-18-12 and achieve at minimum a Leadership in Energy and Environmental Design (LEED) Silver certification. The 2023 Willits General Plan Annual Progress Report
Community Development Department Page 13
facility is projected to be completed in early 2025. Once finalized, existing Ukiah Center CCC housing and training functions would be relocated to the Willits facility.
2.8 HOUSING ELEMENT
The Housing Element of the General Plan is a comprehensive statement by the City of Willits regarding its current and future housing needs and proposed actions to facilitate the provision of housing to meet those needs at all income levels. The policies contained in this element reflect the requirements of the statewide housing priority to allow for the “attainment of decent housing and a suitable living environment for every Californian,” as well as a reflection of the unique concerns of the community. The purpose of the Housing Element is therefore to establish specific goals, policies, and objectives relative to the provision of housing and to adopt an action (implementation) plan toward this end. In addition, the Housing Element identifies and analyzes housing needs and resources and constraints to meeting those needs.
The revised draft of the Housing Element was adopted by Willits City Council on December 11, 2019, and meets full compliance with the State Housing Element law (Article
10.6 of the Government Code). The 2019 Housing Element
update addresses the City’s housing needs over the 2019– 2027 Housing Element planning period. The Housing
Element update has been analyzed for consistency with the City’s General Plan and does not propose any goals,
policies, or programs that are considered contrary to
General Plan goals, policies, or programs. The City’s plan for addressing its identified housing needs focuses on the following areas:
• Housing Quality
• Housing Supply and Neighborhood Conservation
• Housing Affordability
• Equal Housing Opportunity
• Natural Resource and Energy Conservation
Permanent Local Housing Allocation Grant Program (Ongoing):
In December 2022, the City applied to the Permanent Local Housing Allocation grant program to support a City Housing Rehabilitation Program. The Program proposes using PLHA funding to implement an owneroccupied home rehabilitation loan program, offering low or no interest loans to homeowners under 120- percent of the Area Median Income. Generally, the program will provide rehabilitation home loans for activities including but not limited to bringing properties up to current code standards, implementing accessibility upgrades, repair or replacement of major systems such as HVAC or plumbing, abatement of asbestos or lead paint, fixing roof, siding, foundations or other activities which will prevent deterioration, extend the lifespan of the dwelling, and support homeowner affordability. The City received $371,856 in June 2023 to support this revolving loan Program. The City has successfully created the City Housing Rehabilitation Program and is currently in the process of completing first round of loans. The City understands that an additional estimated $182,000 in PLHA funds will become available over the next year to further support the revolving loan program and the City’s goal to preserve its housing stock. 2023 Willits General Plan Annual Progress Report
Community Development Department Page 14
3. HOUSING ELEMENT ANNUAL PROGRESS REPORT
The Regional Housing Needs Plan (RHNP) is mandated by the State of California (Government Code Section 65584) and requires regions to address housing issues and needs based on future growth projections for the area. The California Department of Housing and Community Development (HCD) allocates regional housing needs numbers to regional councils of governments throughout the state. The RHNP for Mendocino County is facilitated by the Mendocino Council of Governments (MCOG) and allocates to the Cities of Ukiah, Fort Bragg, Willits, and Point Arena and the unincorporated area of Mendocino County their “fair share” of the region’s projected housing needs, also known as the Regional Housing Needs Allocation (RHNA). Table 1 lists the breakdown of the RHNA for the City of Willits, by income group, for the 2018–2027 period.
Table 1 Future Housing Needs, 2018–2027
INCOME CATEGORY 2018-2027 RHNA
Extremely Low 17 15%
Very Low 17 15%
Low 25 23%
Moderate 17 15%
Above Moderate 34 31%
Total 111 100%
3.1 MEETING THE REGIONAL HOUSING NEED
Table 2 compares the City of Willits’ RHNA to the site inventory capacity. After including the credit of housing units constructed between January 2018 and December 2023, the City has a surplus of available land to support housing units of all income groups as shown in Table 3 below.
Table 2 Comparison of Regional Growth Need and Residential Sites INCOME GROUP 2018-2027
RHNA
Units Constructed
(1/1/2018 – present)
Remaining
RHNA
Vacant
Inventory
Capacity
RHNA Surplus
Extremely Low 17 0
34 Very Low 17 0 311 259
Low 25 11 14
Moderate 17 22 0 350 350
Above Moderate 34 13 21 51 31
Total 111 46 69 712 643
Provided on the following pages is the 2023 Housing Element Report to be submitted by Staff to California Department of Housing and Community Development (ATTACHMENT 1: 2023 Housing Element Annual Progress Report).
Item No. 9d
Meeting Date: January 08, 2025
AGENDA SUMMARY REPORT
To: Honorable Mayor and Council Members
From: Phillip Davidson, Code Compliance Officer
Agenda Title: INTRODUCTION BY TITLE ONLY A REVISION TO SECTION 8.26.090 -
SUSPENSION, TERMINATION OR REVOCATION OF LICENSE PROVISIONS OF THE WILLITS MUNICIPAL CODE.
Type: Presentation Consent Regular Agenda Public Hearing Urgent Time: 15 minutes.
Summary of Request: The Purpose of Ordinance Amendment #2025-001 is to update the existing City of Willits Municipal Code penalties to coincide with AB 935 that went into effect in 2023 to strengthen and add penalties to SB 793 Stop Tobacco Access to Kids Enforcement (STAKE) Act. Passed in 2020, SB 793 prohibits the sale of flavored tobacco products in California to keep the products away from youth.
While the fines for selling tobacco products to underage youth carried penalties, the sale of flavored tobacco products, that was made illegal to sell by SB 793 had no clear penalties. The current City Ordinance follows these guidelines. In 2023, AB 935 was introduced which provides enforcement similar to the STAKE Act for tobacco retailers that continue to sell flavored tobacco products in California.
Recommended Action: Modify Section 8.26.090 of the Willits Municipal Code.
Alternative(s): None.
Fiscal Impact: None.
Personnel Impact: None.
2025 Adopted Goals: This item supports the intent of Goal #2, Policy 2.3 for Community Development…Fund and implement a comprehensive Code Enforcement Program.
California Environmental Quality Act: The item does not require a CEQA review.
This Item Relates to the following General Plan Element : N/A Land Use Circulation Conservation and Open Space Noise Housing Public Services and Facilities, Parks and Recreation Economic Development
Reviewed by: City Manager City Attorney Assistant City Manager City Clerk Finance Director Human Resources
Council Action: Approved Denied Other: ________________________________ Records: Agreement Resolution #______ Ordinance #______ Other _______ Ordinance No. 2025-__ January ___, 2025
ORDINANCE NO. 2025-
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WILLITS MODIFYING SECTION
8.26.090 - SUSPENSION, TERMINATION OR REVOCATION OF TOBACCO RETAILER LICENSE OF THE WILLITS MUNICIPAL CODE.
WHEREAS, four out of five children who use tobacco started with a flavored tobacco product; and
WHEREAS, according to a Report of the Surgeon General, internal tobacco industry documents show that the industry uses flavors to reduce the harshness of their products to make them more appealing to new users, almost all of whom are under the age 18; and WHEREAS, youth who use electronic smoking devices (ESDs; e.g. e-cigarettes and vapes) are more likely to become conventional cigarette smokers: eighth grade students who use ESDs are ten times more likely than their peers to eventually smoke tobacco cigarettes and become the next market for tobacco cigarettes; and
WHEREAS, these flavored tobacco products present significant public health threats to children, adolescents and young adults, who do not fully perceive the health risks of ESDs and flavored tobacco products, threatening the progress California has achieved in tobacco control; and
WHEREAS, the State of California has banned the sale of flavored tobacco products; and WHEREAS, the City of Willits Municipal Code is unclear on the penalties and fines for retailers that sell flavored tobacco products including electronic smoking devices; and WHEREAS, modification to the City of Willits Municipal Code will make fines and penalties coincide with the new state law AB 935; and
WHEREAS, the subject modifications are indicated by the red highlighted text to Section
8.26.090 below.
NOW, THEREFORE, the City Council of the City of Willits hereby ordains as follows:
SECTION I. RECITALS. The City Council finds that the above recitals are true and correct and are incorporated herein as if set forth in full.
SECTION II. AMENDMENTS TO MUNICIPAL CODE. Section 8.26.090 to Title 8, Health and Safety, of the City of Willits Municipal Code, regarding the Suspension, Termination or Revocation of the Tobacco Retail License ordinance, is hereby amended to read as follows:
Chapter 8.26.090 Suspension, Termination or Revocation
(a) Tobacco Retailing Without a Valid License. In addition to any other penalty authorized by law, including the application of administrative fines under section 8.26.100, if the city finds based on a preponderance of the evidence, after notice and an opportunity to be heard pursuant to section 8.26.090(e) that any person has engaged in tobacco retailing at a location without a valid tobacco retailer's license, either directly or through the person's agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer's license as follows:
Ordinance No. 2025-__ January ___, 2025
1. After a first violation at a location within any sixty-month period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until one year has passed from the date of the violation.
2. After a second violation at a location within any sixty-month period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until three years have passed from the date of the violation.
3. After a third violation at a location within any sixty-month period, no new license may be issued for the person or the location unless ownership of the business at the location has been transferred in an arm's length transaction.
(b) Violation of Minimum Age Laws Related to Tobacco Products:
Suspension, Revocation. In addition to any other remedy authorized by law after notice and opportunity to be heard pursuant to section 8.26.090(e), a tobacco retailer's license may be suspended or revoked as provided in this section if the manager finds, based on a preponderance of the evidence, that the licensee, or any of the licensee's agents or employees, has violated tobacco-related laws as indicated in section 8.26.80. A tobacco retailer shall also be charged the following fines. All administrative penalties resulting from violation of this chapter and collected by the city shall be maintained in a fund specifically designated for compliance monitoring, enforcement efforts and education related to the sale of tobacco products to youth.
1. Upon a finding by the city of a first license violation within any thirty-six month period, the person shall receive a letter of reprimand from the city which shall advise the person that if the person trains all sales employees at the location of the sale in the laws pertaining to the sale of tobacco products to persons under the minimum age allowed by state law to purchase tobacco products, and techniques to ensure future compliance, no penalty will be imposed. Person must submit to the manager, within thirty days, an affidavit signed by person and the sales employees that said training has been completed. If person fails to timely submit the affidavit, city shall impose a fine of one thousand dollars for a first violation in any thirty-six month period.
2. Upon a finding by the city of a second license violation within any thirty-six month period, the tobacco retailer shall pay a fine of two thousand dollars and the person's license shall be suspended for twenty-one days.
3. Upon a finding by the city of a third license violation within any thirty-six month period, the tobacco retailer shall pay a fine of five thousand and the person's license shall be suspended for sixty days.
4. Upon a finding by the city of a fourth license violation within any thirty-six month period, the tobacco retailer shall pay a fine of seven thousand dollars and the person's license shall be suspended for one hundred eighty days.
5. Upon a finding by the city of a fifth or subsequent license violation within any thirtysix month period, the tobacco retailer shall pay a fine of nine thousand dollars and the person's license shall be revoked for not less than one year.
(c) The Sale of Flavored Tobacco:
Suspension, Revocation. In addition to any other remedy authorized by law after notice and opportunity to be heard pursuant to section 8.26.090(e), a tobacco retailer's license may be suspended or revoked as provided in this section if the manager finds, based on a preponderance of the evidence, that the licensee, or any of the licensee's agents or employees, has violated tobacco-related laws as indicated in section 8.26.80. A tobacco retailer shall also be charged the following fines. All administrative penalties resulting from violation of this chapter and collected by the city shall be maintained in a fund specifically designated for compliance monitoring and enforcement efforts.
1. Upon a finding by the city of a first license violation the tobacco retailer shall pay a fine of five hundred dollars.
2. Upon a finding by the city of a second license violation within any five-year period, the Ordinance No. 2025-__ January ___, 2025
tobacco retailer shall pay a fine of one thousand dollars.
3. Upon a finding by the city of a third license violation within any thirty-six-month period, the tobacco retailer shall pay a fine of one thousand five hundred dollars.
4. Upon a finding by the city of a fourth license violation within any five-year period, the tobacco retailer shall pay a fine of three thousand dollars.
5. Upon a finding by the city of a fifth license violation within any five-year period, the tobacco retailer shall pay a fine of five thousand dollars. (d) No Display or Advertising. During any period of suspension or revocation the licensee:
1. Shall remove all tobacco products from public view. Failure to do so shall result in an administrative fine pursuant to section 8.26.100, with each day constituting a separate violation.
2. Shall not display any advertising relating to tobacco products that promotes the sale or distribution of such products from the tobacco retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location. Failure to do so shall result in an administrative fine pursuant to section 8.26.100, with each day constituting a separate violation.
(e) Notice of Intended Decision. Upon the existence of any of the grounds for ineligibility, denial, suspension, or revocation of a license pursuant to this chapter, the city shall issue to the license applicant or holder a notice of intended decision. The notice of intended decision shall state the grounds upon which the denial, revocation, or suspension is based. The notice of intended decision shall specify the effective date of the action. The notice of intended decision shall advise the license applicant or holder that the suspension or revocation shall become final unless the person files a written request for administrative review within ten calendar days of the date of service of the notice of intended decision.
(f) Service Procedures. The city's decision to impose a suspension or revocation may be served by personal service or by certified mail, postage prepaid with a return receipt requested.
Simultaneously, the decision may be sent by first class mail, postage prepaid with certificate of mailing requested. Certified and first-class mail will be addressed to the tobacco retailer at the address shown on the license application. If the decision is sent by certified mail and returned unsigned, then service shall be deemed effective pursuant to first claim mail, provided the decision sent by first class mail is not returned by the United States Postal Service undelivered.
In the case of service by certified mail for which a signed receipt is returned, the date of service shall be the date of signing of the receipt. In the case of service by regular first-class mail, the date of service shall be the date upon which such mail was deposited in the United States Mail with postage prepaid, plus five days.
(g) Termination of License for Failure to Pay Renewal Fees. A tobacco retailer's license which is not timely renewed pursuant to section 8.26.020(b) shall automatically be deemed terminated by operation of law.
(h) Revocation of License Issued in Error. A tobacco retailer's license shall be revoked if the city finds, after notice and opportunity to be heard, that one or more of the bases for denial of a license under section 8.26.040 existed at the time application was made or at any time before the license issued. The decision by the city shall be the final decision of the city. The revocation shall be without prejudice to the filing of a new application for a license. (i) Revocation of License Obtained Under False Pretenses. Tobacco retailers whose licenses are obtained under false pretenses shall have their license revoked. This revocation shall be with prejudice. One calendar year must elapse between any revocation pursuant to this subsection and any subsequent application.
(j) Appeal of Suspension, Penalties or Revocation. Requests for appeal must be filed with the city within ten calendar days from the date of a properly served decision under 8.26.090(e).
With respect to suspensions or revocations, if such an appeal is timely made it shall stay enforcement of the appealed action. An appeal is not available for a revocation made pursuant to
8.26.090 (g) above. The city may engage in settlement negotiations and may enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter; provided a Ordinance No. 2025-__ January ___, 2025
timely appeal has been filed. Settlements shall not be confidential.
The above and foregoing ordinance was introduced by Councilmember seconded by Councilmember , and passed and adopted at a regular meeting of the City Council of the City of Willits, held on the day of , 2025, by the following vote:
AYES:
NOES:
ABSENT:
ATTEST:
__________________________
_________________________________
LARRY STRANSKE, Mayor
City Council of the City of Willits
DELORES PEDERSEN, City Clerk
Item No. 9e
Meeting Date: January 08, 2025
AGENDA SUMMARY REPORT
To: Honorable Mayor and Council Members
From: Phillip Davidson, Code Compliance Officer
Agenda Title: INTRODUCTION BY TITLE ONLY TO INSERT CHAPTER 8.24 – NITROUS
OXIDE SALES INTO THE CITY OF WILLITS MUNICIPAL CODE, MAKING IT UNLAWFUL FOR
ANY PERSON IN THE CITY, WITH EXCEPTIONS, TO SELL OR ATTEMPT TO SELL, OFFER, DISTRIBUTE, OR PROVIDE NITROUS OXIDE TO ANY PERSON.
Type: Presentation Consent Regular Agenda Public Hearing Urgent Time: 15 minutes.
Summary of Request: The purpose of this new Chapter has been brought on by an increase in the use of nitrous oxide as a recreation drug. Medical authorities have linked the recreational use of nitrous oxide to serious health problems, including physical illness, mental illness, injury, and even death.
The California Penal Code, Section 381(b)(c)(e) makes it a misdemeanor for anyone to intentionally inhale or ingest nitrous oxide for the purpose of causing intoxication, to sell or distribute nitrous oxide to anyone under the age of 18 (unless administered by and for medical or dental purposes by a licensed practitioner), and also requires that anyone dispensing or distributing nitrous oxide must inform the purchaser that it is a violation of state law to knowingly distribute or dispense nitrous oxide to a person who intends to breathe, inhale, or ingest it for the purpose of intoxication.
In spite of the state law prohibitions, there are loopholes that allow the distribution of nitrous oxide cartridges in quantities of many hundreds at a time without meaningful oversight, which puts members of the community at risk. By eliminating the sale and distribution of nitrous oxide in the City, it will reduce the number of persons in possession of and who use nitrous oxide as an intoxicating drug and will promote the public health, safety, and welfare.
Recommended Action: Staff recommends the following actions: (1) Approve the introduction, by title only, of a new Chapter 8.24 - Nitrous Oxide Sales to the City of Willits Municipal Code, and waive the formal reading; and (2) Schedule the second reading and adoption of Chapter 8.24 - Nitrous Oxide Sales at the next regularly scheduled City Council meeting on January 22, 2025.
Alternative(s): None.
Fiscal Impact: None.
Personnel Impact: Community Development staff to inspect businesses. 2021 Adopted Goals: This item supports the intent of Goal #2, Policy 2.3 for Community Development…Fund and implement a comprehensive Code Enforcement Program.
California Environmental Quality Act: The item does not require a CEQA review.
This Item Relates to the following General Plan Element : N/A Land Use Circulation Conservation and Open Space Noise Housing Public Services and Facilities, Parks and Recreation Economic Development
Reviewed by: City Manager City Attorney Assistant City Manager City Clerk Finance Director Human Resources
Council Action: Approved Denied Other: ________________________________ Records: Agreement Resolution #______ Ordinance #______ Other _______ Ordinance No. 2025-__ January ___, 2025
ORDINANCE NO. 2025-
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WILLITS, CALIFORNIA, ADDING CHAPTER 8.24 TO THE CITY OF WILLITS MUNICIPAL CODE, MAKING IT UNLAWFUL FOR
ANY PERSON IN THE CITY, WITH EXCEPTIONS, TO SELL OR ATTEMPT TO SELL, OFFER,
DISTRIBUTE, OR PROVIDE NITROUS OXIDE TO ANY PERSON
FINDINGS AND DECLARATIONS:
WHEREAS, nitrous oxide use continues to be an urgent public health challenge; and WHEREAS, medical authorities have linked the recreational use of nitrous oxide to serious health problems, including physical illness, mental illness, injury, and even death; and WHEREAS, the California Penal Code, Section 381b, makes it a misdemeanor for anyone to intentionally inhale or ingest nitrous oxide for the purpose of causing intoxication, and anyone who is so intoxicated is also guilty of a misdemeanor; and WHEREAS, the California Penal Code, Section 381c, makes it a misdemeanor to sell or distribute nitrous oxide to anyone under the age of 18 (unless administered by and for medical or dental purposes by a licensed practitioner); and
WHEREAS, the California Penal Code, Section 381e, requires that anyone dispensing or distributing nitrous oxide must inform the purchaser that it is a violation of state law to knowingly distribute or dispense nitrous oxide to a person who intends to breathe, inhale, or ingest it for the purpose of intoxication; and
WHEREAS, in spite of the state law prohibitions, there are loopholes that allow the distribution of nitrous oxide cartridges in quantities of many hundreds at a time without meaningful oversight, which puts members of the community at risk; and WHEREAS, eliminating the sale and distribution of nitrous oxide in the City of Willits will reduce the number of persons in possession of and who use nitrous oxide as an intoxicating drug and will promote the public health, safety, and welfare; and WHEREAS, the City has the affirmative duty to protect the health, safety, and welfare of all its citizens and takes nitrous oxide abuse seriously; and NOW THEREFORE, the City Council of the City of Willits hereby ordains as follows:
SECTION I. RECITALS. The City Council finds that the above recitals are true and correct and are incorporated herein as if set forth in full.
SECTION II. AMENDMENTS TO MUNICIPAL CODE. The City of Willits Municipal Code is hereby amended adding Chapter 8.24 entitled, “Regulation of Nitrous Oxide,” to Title 8, Health and Safety, to read as follows:
Ordinance No. 2025-__ January ___, 2025
Chapter 8.24 REGULATION OF NITROUS OXIDE
8.24.010 Authority and Purpose.
This chapter is enacted pursuant to the City’s police powers to protect the public safety, health and welfare. The express purpose of this chapter is to protect the public health and safety by limiting retail access to a very dangerous gas that is illicitly used as an intoxicant. Persons and businesses that legitimately utilize nitrous oxide in their products will continue to be able to do so.
8.24.020 Definitions.
The following words and phrases as used in this section are defined as follows.
1. DEVICE. “Device” means any cartridge, compressed gas cylinder, apparatus, container, or other object used to contain, dispense or administer nitrous oxide.
2. NITROUS OXIDE. “Nitrous oxide” means the colorless nonflammable gas (N20) sometimes used in aerosols and sometimes used as an anesthetic, which, when inhaled, produces loss of sensibility to pain, oftentimes preceded by exhilaration and laughter and used often as an anesthetic in dentistry. Nitrous oxide is also called, “laughing gas.”
3. PERSON. “Person” refers to any individual or other entity howsoever organized or constituted.
8.24.030 PROHIBITION OF SALE OR DISTRIBUTION OF NITROUS OXIDE.
It is unlawful for any person not excepted hereafter to sell or attempt to sell, offer, distribute, or otherwise provide to any person nitrous oxide, a device to dispense or administer nitrous oxide, or any device that contains a quantity of nitrous oxide. This section shall not apply to the sale of nitrous oxide contained in food products for use as a propellant.
8.24.040 EXCEPTIONS
.
This Chapter does not apply to the sale, offer, distribution, or other manner of providing nitrous oxide, or a device that contains nitrous oxide, in the following circumstances:
1. If the nitrous oxide is being administered for the purpose of providing medical or dental care, if administered by a medical or dental practitioner licensed by this state or at the direction or under the supervision of a practitioner licensed by this state.
2. If the nitrous oxide is being dispensed or administered by a pharmacist, pharmacist intern, or pharmacy as defined by California Business and Professions Code §§ 4030, 4036 and 4037, as may be amended, in the course of their pharmaceutical duties, or by wholesalers licensed by the Board of Pharmacy.
3. If the nitrous oxide or device is being sold, offered or distributed by a manufacturer classified under Code Number 325120 (industrial gas manufacturer) or 424690) other chemical and allied products merchant wholesalers) by the North American Industry Ordinance No. 2025-__ January ___, 2025
Classification System (MASICS).
8.24.050. VIOLATIONS AND PENALTIES
Any person violating this chapter is guilty of a misdemeanor and, upon conviction thereof, may be punished by a term in the county jail or by a fine of one thousand dollars ($1,000.00), or both.
The unlawful sale or distribution of nitrous oxide within the city in violation of this chapter is hereby declared to be unlawful and a public nuisance and the city may enforce compliance and abate the nuisance by any remedy available to the city including the filing of a civil action to enjoin the violation pursuant to Code of Civil Procedure Section 731, by summary abatement if warranted pursuant to Government Code Section 38773, and/or pursuant to the code enforcement procedures and remedies set forth at Chapter 1.12 of the Willits Municipal Code.
The above and foregoing Resolution was introduced by Councilmember seconded by Councilmember , and passed and adopted at a regular meeting of the City Council of the City of Willits, held on the day of , 2025, by the following vote:
AYES:
NOES:
ABSENT:
ATTEST:
__________________________
________________________________
, Mayor
City Council of the City of Willits
DELORES PEDERSEN, City Clerk