CITY OF ATWATER CITY COUNCIL AND SUCCESSOR AGENCY TO THE ATWATER REDEVELOPMENT AGENCY AGENDA Council Chambers 750 Bellevue Road Atwater, California April 24, 2017 REGULAR SESSION: (Council Chambers) 6:00 PM CALL TO ORDER: PLEDGE OF ALLEGIANCE TO THE FLAG: INVOCATION: Invocation by Police Chaplain ROLL CALL: (City Council/Governing Board/Board of Directors) Creighton ____, Raymond ____, Vierra ____, Vineyard ____, Price____ MAYOR OR CITY ATTORNEY REPORT OUT FROM CLOSED SESSION: SUBSEQUENT NEED ITEMS: (The City Clerk shall announce any requests for items requiring immediate action subsequent to the posting of the agenda. Subsequent need items require a two-thirds vote of the members of the City Council present at the meeting.) APPROVAL OF AGENDA AS POSTED OR AS AMENDED: (This is the time for the City Council to remove items from the agenda or to change the order of the agenda.) Staff’s Recommendation: Motion to approve agenda as posted or as amended. CEREMONIAL MATTERS: Atwater High School Winter Guard and Percussion Scholastic Regional A Central Valley Guard and Percussion Circuit Champions Staff’s Recommendation: that Mayor Price and Council Member Creighton make presentations to the Atwater High School Winter Guard and Percussion champions.
Transcript
CITY OF ATWATER CITY COUNCIL
AND SUCCESSOR AGENCY TO THE ATWATER
REDEVELOPMENT AGENCY AGENDA
Council Chambers 750 Bellevue Road Atwater, California
CALL TO ORDER: PLEDGE OF ALLEGIANCE TO THE FLAG: INVOCATION: Invocation by Police Chaplain ROLL CALL: (City Council/Governing Board/Board of Directors) Creighton ____, Raymond ____, Vierra ____, Vineyard ____, Price____ MAYOR OR CITY ATTORNEY REPORT OUT FROM CLOSED SESSION: SUBSEQUENT NEED ITEMS: (The City Clerk shall announce any requests for items requiring
immediate action subsequent to the posting of the agenda. Subsequent need items require a two-thirds vote of the members of the City Council present at the meeting.)
APPROVAL OF AGENDA AS POSTED OR AS AMENDED: (This is the time for the City
Council to remove items from the agenda or to change the order of the agenda.)
Staff’s Recommendation: Motion to approve agenda as posted or as amended. CEREMONIAL MATTERS:
Atwater High School Winter Guard and Percussion Scholastic Regional A Central Valley Guard and Percussion Circuit Champions
Staff’s Recommendation: that Mayor Price and Council Member Creighton make presentations to the Atwater High School Winter Guard and Percussion champions.
City Council and Successor Agency to ARA Agenda for Meeting of April 24, 2017 Page 2
COMMENTS FROM THE PUBLIC: CONSENT CALENDAR: WARRANTS: 1. April 24, 2017
Staff’s Recommendation: Approval of warrants as listed.
MINUTES: (City Council)
2. a) Special meeting, April 10, 2017
b) Regular meeting, April 10, 2017
Staff’s Recommendation: Approval of minutes as listed. RESOLUTIONS: 3. Approving Department of Transportation Program Supplemental
Agreement No. F021 for Highway Safety Improvement Program (HSIP) Cycle 7 (Interim City Manager/Community Development Director)
Staff’s Recommendation: Adopts Resolution No. 2942-17, authorizing and directing the City Manager or his designee to execute any agreements or documents, in a form approved by the City Attorney, on behalf of the City, relating to HSIP Cycle 7 Project CML-5254(026).
NOTICE TO THE PUBLIC
Background information has been provided on all matters listed under the Consent Calendar, and these items are considered to be routine. All items under the Consent Calendar are normally approved by one motion. If discussion is requested on any item, that item will be removed from the Consent Calendar for separate action.
NOTICE TO THE PUBLIC
At this time any person may comment on any item which is not on the agenda. Please state your name and address for the record. Action will not be taken on an item that is not on the agenda. If it requires action, it will be referred to staff and/or placed on a future agenda.
To comment on an item that is on the agenda, please wait until the item is read for consideration; please limit comments to a maximum of five (5) minutes.
Civility is expected from members of the public during the meeting. For more efficient use of time, disruptive behavior will not be tolerated. While you may not agree with what an individual is saying, please treat everyone with courtesy and respect.
City Council and Successor Agency to ARA Agenda for Meeting of April 24, 2017 Page 3
AGREEMENTS:
4. Approving the Purchase and Sale Agreement for the Long Range Property
Management Plan Property 1 (Interim City Manager/Community Development Director)
Staff’s Recommendation: Adopts Resolution No. SA 2017-3 approving the Purchase and Sale Agreement (“PSA”) for Long Range Property Management Plan (“LRPMP”) Property 1, 1222 Atwater Boulevard (“Property”).
5. Approving Contract and Budget Amendment regarding Affordable Housing
consulting services (Interim City Manager/Community Development Director)
Staff’s Recommendation: Adopts Resolution No. 2950-17 approving professional services agreement Rosenow Spevacek. Inc., in a form approved by the City Attorney, for affordable housing consulting services for Fiscal Year (“FY”) 2016-17 and authorizes and directs the City Manager to execute the agreement on behalf of the City of Atwater; and adopts Resolution No. 2951-17 approving Budget Amendment No. 5 regarding Affordable Housing Consulting Services.
6. Awarding a cooperative purchase for three (3) new 2017 Utility Trucks (Water Division Manager/Chief Operator Shaw)
Staff’s Recommendation: Awards a cooperative purchase, in a form approved by the City Attorney, to Razzari Ford, 1234 Auto Center Drive, Merced, California, 95341 for the purchase of three (3) new 2017 utility trucks in an amount not to exceed $90,935.50; and authorizes and directs the City Manager to execute the purchase agreement on behalf of the City.
7. Approving Memorandum of Understanding forming the Merced Irrigation-
Staff’s Recommendation: Approves a Memorandum of Understanding forming the Merced Irrigation-Urban Groundwater Sustainability Agency; authorizes and directs the Mayor to execute the Memorandum of Understanding, in a form approved by the City Attorney, on behalf of the City; and sets a public hearing for May 8, 2017 to provide the public an opportunity to comment on the Memorandum of Understanding.
City Council and Successor Agency to ARA Agenda for Meeting of April 24, 2017 Page 4
INFORMATIONAL ITEMS ONLY (NO ACTION REQUIRED): 8. Public Works Department activities and projects for the month of March,
2017 (Interim Public Works Director Faretta)
9. Water Well Levels for the month of March, 2017 (Water Division Manager/Chief Operator Shaw)
PETITIONS AND COMMUNICATIONS: 10. Request to hold Red Ribbon Walk (Community Member Miranda Medeiros)
Staff’s Recommendation: Motion to approve request to hold a Red Ribbon Walk starting on Determine Drive to Bellevue Road down Winton Way to Winton Park on Saturday, October 28, 2017 from 10:00 AM – 1:00 PM. Motion to approve staff’s recommendation as presented.
FUNDING AND BUDGET MATTERS: 11. Treasurer’s Report for the month of March, 2017 (City Treasurer Heller)
Staff’s Recommendation: Motion to approve the Treasurer’s Report for the month of March, 2017; or
Motion to approve staff’s recommendation as presented.
12. Quarterly Financial Update for Fiscal Year 2016/17 (Finance Director Deol) INTERIM CITY MANAGER REPORTS: 13. Policy issues related to possible amendments to existing medical
marijuana codes and potential Commercial Marijuana Ordinance
Staff’s Recommendation: that City Council review draft ordinance and by motion provide staff with direction regarding policy issues related to possible amendments to Title 8, Chapter 8.52 Medical Marijuana, Title 17, Chapter 17.06 Definitions, and a potential Commercial Marijuana Ordinance – Title 17 Zoning, Chapter 17.75 Specific Uses.
REPORTS AND PRESENTATIONS FROM STAFF: 14. Verbal update regarding code enforcement activities and potential code
modifications relating to nuisance abatement (Code Enforcement Officer Velazquez)
City Council and Successor Agency to ARA Agenda for Meeting of April 24, 2017 Page 5
CITY COUNCIL MATTERS: 15. City Council comments
CLOSED SESSION: Continuation of Closed Session if necessary ADJOURNMENT: CERTIFICATION:
I, Don Hyler III, City Clerk/Board Clerk of the City of Atwater, do hereby certify that a copy of the foregoing agenda was posted at City Hall a minimum of 72 hours prior to the meeting.
_______________________________ DON HYLER III CITY CLERK AB 23 NOTICE: Pursuant to Government Code Section 54952.3, City Council is not receiving additional compensation for serving as members of the Successor Agency to the Atwater Redevelopment Agency. SB 343 NOTICE In accordance with California Government Code Section 54957.5, any writing or document that is a public record, relates to an open session agenda item and is distributed less than 72 hours prior to a regular meeting will be made available for public inspection in the office of the City Clerk at City Hall during normal business hours at 750 Bellevue Road.
If, however, the document or writing is not distributed until the regular meeting to which it relates, then the document or writing will be made available to the public at the location of the meeting, as listed on this agenda at 750 Bellevue Road.
In compliance with the Federal Americans with Disabilities Act of 1990, upon request, the agenda can be provided in an alternative format to accommodate special needs. If you require special accommodations to participate in a City Council, Commission, or Committee meeting due to a disability, please contact the City Clerk’s Office a minimum of three (3)
business days in advance of the meeting at 357-6205. You may also send the request by email to [email protected].
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
Osborn Park Tennis CoufsSpecial Departmental Expense
Travel\Conferences\Meetings
Special Departmental Expense
Special Departmental Expense
Professional Services
Offrce Supplies
Special Departmental Expense
Operations & Maintenance
Vision Insu¡ance
Special Departmental Expense
Vendor Name
PACIFIC GAS & ELECTRIC
PACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRICPACIFIC GAS & ELECTRIC
THE BANK OF NEWYORK MELLONTHE BANK OF NEWYORK MELLONTHE BANK OF NEWYORKMELLONTHE BANK OF NEWYORK MELLONTHE BANK OF NEWYORK MELLONTHE BANK OF NEWYORKMELLON
Check Total:
AECOM TECHNICAL SERVICES, INC.AECOM TECHNICAL SERVICES, INC.
WEISS INVESTMENTS, INC.WEISS INVESTMENTS, INC,WEISS INVESTMENTS, INC.WEISS INVESTMENTS, INC.
Void Amount
69-32
l'73.00
173.00
s2.87
7020s/
7020/
70210/
04/24/2017 General Fund
04/24/2017 General Fund
70210
70210
702t070210
70210
702t070210
70210
70210
70210
70210
'70214
04/24/2017
04/2412017
04/24/201'1
04124/20t7
04/24/20r7
04/2412017
04124/201'1
04/24/20|'.t
04/24/20r704/2412017
04/24t2017
04/24/201'.l
702n/
70212/
702t3/
?0 41
04/24/2017 Water Enterprise Fund
04124/2017 Employee Beneñts Fund
04124/201'1 Intemal Service Fund
General Fund
General Fund
General Fund
Gas Tax,/Street Improvement
Sewer Enterprise Fund
Measure H Fund
Water Enterprise Fund
Internal Service Fund
General Fund
Gene¡al Fund
General Fund
Intemal Service Fund
Water Enterprise Fund
Water Enterprise Fund
Water Enterprise Fund
Sewer Enterprise Fund
Sanitation Enterprise
Sanitation Enterprise
52.87
1,450.80
319.49
10'7.40
82.02
197.29
53.70
250.95
10.74
53;70
404.56
786.72
157.55
3,874.92
18.44
18.44
1,005.53
1,005.53
128.47
t28.47
32.33
24.6s
70215
702r5
70215
70215
04124/201',t
04/24/2017
04/24/2017
04/24120t7
04/24120t7
04/24/2017
56.98
I r.50
21.59
6.93
2.16
42.18
AP-Checks forApproval (411912017 - l:25 PM)
Check Total:
Page 12
Check
70216
70217
70217
70217
70218
702t8702t870218
7021
70220
70220
70220
70220
Check Date Fund Name
04124/2017 Intemal Service Fund
Account Name
Utilities
Closing of WWTPProfessional Services
Professional Services
Accounts Payable
Accounts Payable
Accounts Payable
Accounts Payable
Special Departmental Expense
Accounts Payable
Accounts Payable
Accounts Payable
Accounts Payable
Adult Co-Ed Volleyball
Vendor Name
WEST COAST GAS CO. INC
Check Total
WESTYOST & ASSOCIATES
WESTYOST & ASSOCIATES
WESTYOST & ASSOCIATES
Check Total:
JENNIFERWILDES
JENNIFERWILDES
JENMFERWILDESJENNIFERWILDES
Check Total:
WINTONHARDWARE
Check Total:
LEE XIONG & TENG LEELEE )ilONG & TENG LEELEE XIONG & TENG LEELEE XIONG & TENG LEE
Check Total:
RICHARDA, ZAMARRIPA
Check Total:
Report Total:
Void
29,9t7.13
30.57
5'7.41
t8.42
5;74
Amount
21.96
21.96
6,643.02
8,132.85
15,t41.26
1t2.14
9.64
9.64
21.31
46.06
14;18
4.61
86.76
221.00
221.00
0412412017
04/24/2017
04/24/2017
04/24t20t'1
04124/2017
04124/20|'t
04124/2017
04/2412017
04124/20t7
04124/2017
04124/2017
04/24/2017 Water Enterprise Fund
Sewer Enterprise Fund
Sewer Enterprise Fund
Sanitation Enterprise
Water Enterprise Fund
Sewer Enterprise Fund
Sanitation Enterprise
Sanitation Enterprise
Water Enterprise Fund
Sewer Enterprise Fund
Sanitation Enterprise
Sanitation Enterprise
04124/20t7 General Fund
3,589,286.48
AP-Checks for Approval (4/1912017 - l:25 PM) Page 13
SPECIAL MEETING CITY COUNCIL
ACTION MINUTES
April 10, 2017 CALL TO ORDER: The City Council of the City of Atwater met in Special Session this date at 1:00 PM in the City Council Chambers located at the Atwater Civic Center, 750 Bellevue Road, Atwater, California; Mayor Pro Tem Vineyard presiding. ROLL CALL: Present: City Council Members Creighton, Raymond, Vierra (1:02 PM)
Mayor Pro Tem Vineyard, Mayor Price (1:02 PM) Absent: None Staff Present: Deputy City Clerk Saavedra PUBLIC COMMENT: Notice to the public was read. No one came forward to speak at this time. CLOSED SESSION: (Conference Room A) Mayor Pro Tem Vineyard invited public comments on Closed Session items. No one came forward to speak at this time. Pursuant to Government Code Section 54957, Public Employee Appointment: City Manager
CITY OF ATWATER
Minutes
City Council Special Meeting Action Minutes for April 10, 2017 Page 2
ADJOURNMENT: Mayor Pro Tem Vineyard adjourned the meeting to Conference Room A for Closed Session at 1:02 PM. Closed Session was called to order at 1:05 PM. Closed Session adjourned at 4:56 PM. ___________________________________ DON HYLER III CITY CLERK By: Margarita Saavedra Recording Secretary
CITY COUNCIL
ACTION MINUTES
April 10, 2017 OPEN SESSION: (Council Chambers) The City Council of the City of Atwater met in Open Session this date at 5:00 PM in the City Council Chambers located at the Atwater Civic Center, 750 Bellevue Road, Atwater, California; Mayor Price presiding. ROLL CALL: Present: City Council Members Creighton, Raymond, Vierra, Mayor Pro
Tem Vineyard, Mayor Price Absent: None Staff Present: City Attorney Terpstra, Deputy City Clerk Waterman,
Recording Secretary Bengtson-Jennings CLOSED SESSION: (Conference Room A) Mayor Price invited public comments on Closed Session items. No one came forward to speak at this time. Mayor Price adjourned the meeting to Conference Room A for Closed Session at 5:01 PM. Closed Session was called to order at 5:03 PM. Conference with Legal Counsel – Anticipated Litigation – Government Code Section 54956.9(b): Number of cases: (3) Conference with Legal Counsel – Existing Litigation – Government Code Section 54956.9(a): Name of case: Gonzales vs. City of Atwater, Case Number: CV002234
CITY OF ATWATER
Minutes
City Council Meeting Action Minutes for April 10, 2017 Page 2
Conference with Labor Negotiator – Government Code Section 54957.6. Agency Negotiators: Deputy City Attorney Henderson and Human Resources Director Del Real; Bargaining Units: Atwater Police Officers Association and AFSCME Local 2703 – Miscellaneous Unit and Clerical Unit Closed Session adjourned at 5:53 PM. REGULAR SESSION: (Council Chambers) The City Council of the City of Atwater met in Regular Session this date at 6:02 PM in the City Council Chambers located at the Atwater Civic Center, 750 Bellevue Road, Atwater, California; Mayor Price presiding. PLEDGE OF ALLEGIANCE TO THE FLAG: The Pledge of Allegiance was led by Mayor Price. INVOCATION: The Invocation was led by Police Chaplain McClellan. ROLL CALL: Present: City Council Members Creighton, Raymond, Vierra, Mayor Pro
Tem Vineyard, Mayor Price Absent: None Staff Present: Interim City Manager McBride, City Attorney Terpstra, CAL
FIRE Battalion Chief Pimentel, Finance Director Deol, Human Resources Director Del Real, Police Chief Joseph, Interim Public Works Director Faretta, City Clerk Hyler III
MAYOR OR CITY ATTORNEY REPORT OUT FROM CLOSED SESSION:
Special meeting April 10, 2017 at 1:00 PM City Attorney Terpstra announced that the City Council conducted interviews for the appointment of City Manager. No reportable action was taken and staff was given direction.
April 10, 2017 at 5:00 PM City Attorney Terpstra reported that no action was taken and staff was given direction. The Closed Session agenda was completed. SUBSEQUENT NEED ITEMS: None.
City Council Meeting Action Minutes for April 10, 2017 Page 3
APPROVAL OF AGENDA AS POSTED OR AS AMENDED: City Clerk Hyler III announced a request to remove agenda item #9 under Reports and Presentations from Staff, “Verbal update regarding code enforcement activities and potential code modifications relating to nuisance abatement,” in its entirety and to place the item on the next regular City Council meeting agenda of April 24, 2017. MOTION: Mayor Pro Tem Vineyard moved to approve the agenda as amended. The motion was seconded by City Council Member Creighton and the vote was: Ayes: Raymond, Vierra, Vineyard, Creighton, Price; Noes: None; Absent: None. The motion passed. PRESENTATIONS: Monthly verbal report by Merced County District 3 Supervisor McDaniel Merced County District 3 Supervisor McDaniel introduced Merced County District 4 Supervisor Lloyd Pareira whose representation boundary includes portions of Atwater. Supervisor Pareira introduced himself and spoke of his willingness to assist with City/County relations and community issues. Supervisor McDaniel announced that he engaged in open discussions with each city in Merced County concerning the topic of marijuana. He spoke regarding SB-1, the newly adopted transportation funding Senate Bill (gas tax), and regarding Measure V, the Merced County transportation sales tax, and how each will affect local residents and improve roads. CEREMONIAL MATTERS: Certificates of Appreciation to Heller Park volunteers Mayor Pro Tem Vineyard presented Certificates of Appreciation to Francisco Sandoval, Froylan Aguilar Bucio, and Victor Avila for cleaning and maintaining Heller Park, for keeping the park cement areas clear of graffiti, and for their community involvement with the youth surrounding Heller Park. JOY VON MUELLER, Atwater, praised Victor Avila not only for his efforts in cleaning Heller Park, but for mentoring the local children as well. COMMENTS FROM THE PUBLIC: Notice to the public was read.
City Council Meeting Action Minutes for April 10, 2017 Page 4
JEANIE KNIGHT, Atwater, questioned the proper protocol to report drug use at local parks. Police Chief Joseph clarified that drug use and loitering in City parks should be reported to the Police Department. ERIC LEE, Atwater, thanked the Public Works Department for their hard work in keeping storm drains clean and roads clear in light of the wet year. No one else came forward to speak. CONSENT CALENDAR: MOTION: City Council Member Raymond moved to approve the consent calendar as listed. The motion was seconded by Mayor Pro Tem Vineyard and the vote was: Ayes: Vineyard, Vierra, Raymond, Creighton, Price; Noes: None; Absent: None. The motion passed.
WARRANTS:
1. April 10, 2017
ACTION: Approval of warrants as listed. MINUTES: (City Council) 2. a) Regular meeting, March 27, 2017
b) Adjourned meeting, March 28, 2017 ACTION: Approval of minutes as listed. AWARD OF BIDS: 3. Awarding contract for the purchase of two (2) Dump Trucks (Interim City
Manager McBride) ACTION: Awards a contract, in a form approved by the City Attorney, for the purchase of two (2) new Title 23, Tier 4 Dump Trucks, City Project No. 14-11, Bid Call No. 676-17 to Fred M. Boerner Motor Co., Huntington Park, California in the amount of $214,750.18; and authorizes the City Manager or his designee to execute the contract agreement on behalf of the City. 4. Awarding contract for Congestion Management and Air Quality (CMAQ) Project
City Council Meeting Action Minutes for April 10, 2017 Page 5
ACTION: Awards a contract, in a form approved by the City Attorney, for construction of Buhach Road Sidewalk Infill Project, City Project No. 14-4, to FBD Vanguard Construction, Livermore, California in the amount of $127,825; and authorizes the City Manager to execute the contract agreement on behalf of the City. CLAIMS AGAINST THE CITY: 5. Claim No. 2017-1
ACTION: After consideration and investigation, it is staff’s recommendation that Claim No. 2017-1 be rejected.
INFORMATIONAL ITEMS ONLY (NO ACTION REQUIRED):
6. Police Department activities and projects for the month of March, 2017 (Police
Chief Joseph)
7. Police Volunteer activities for the month of March, 2017 (Police Volunteer Vineyard)
8. Fire Department activities and projects for the month of March, 2017 (CAL FIRE Battalion Chief Pimentel)
REPORTS AND PRESENTATIONS FROM STAFF: Verbal update regarding code enforcement activities and potential code modifications relating to nuisance abatement (Code Enforcement Officer Velazquez) This item was removed from the agenda in its entirety and will be placed on the next regular City Council meeting agenda of April 24, 2017. Approving Budget Amendment No. 4 regarding the purchase and retrofitting of two (2) fire command vehicles (CAL FIRE Battalion Chief Pimentel) MOTION: City Council Member Creighton moved to adopt Resolution No. 2941-17 approving Budget Amendment No. 4 regarding the purchase and retrofitting of two (2) fire command vehicles; to award a cooperative purchase of two (2) command vehicles to Courtesy Chevrolet of San Diego, California in an amount not to exceed $87,288.54; and to authorize and direct the City Manager to execute the purchase agreement on behalf of the City. The motion was seconded by Mayor Pro Tem Vineyard and the vote was: Ayes: Raymond, Creighton, Vineyard, Vierra, Price; Noes: None; Absent: None. The motion passed. DANIEL HERNANDEZ, Atwater, spoke in opposition to the purchase of two fire command vehicles, especially due to the City’s on-going financial struggles.
City Council Meeting Action Minutes for April 10, 2017 Page 6
CITY COUNCIL MATTERS: Discussion regarding contracting with Open.gov to provide the Smart Government Platform™ (Requested by City Council Member Raymond) City Manager McBride spoke regarding contracting with Open-gov to provide the Smart Government Platform™ for transparency and reported that more information is forthcoming. Discussion and possible action regarding suspending video production of City Council meetings (Requested by City Council Member Vierra) JIM SANDERS, JD Sanders Company LLC, spoke regarding video production of City Council meetings and current potential hazards, and he answered questions of the City Council. JEANIE KNIGHT, Atwater, suggested a short term fix of rearranging the City Council chambers as before. ERIC LEE, Atwater, voiced his displeasure with the manner in which this item was presented, and he stated that for transparency, every meeting should be video recorded. DANIEL HERNANDEZ, Atwater, suggested holding City Council meetings at the Community Center until such time as the City Council Chambers can be “fixed” and made ADA compliant. By consensus, the City Council directed the City Manager to consult the City’s Chief Building Official and Mr. Sanders to identify any possible hazards and to implement corrective action prior to the next regular City Council meeting. City Council comments City Council Member Raymond wished his son, Jacob, a Happy 13th Birthday. City Council Member Vierra thanked the community for their prayers in anticipation of a new granddaughter making her way into the world this evening. Mayor Pro Tem Vineyard announced that he will be unavailable at the end of the week for approximately ten days. He will meet with Police Chief Joseph to select a coordinator for the Police Department volunteers who will act in his absence. City Council Member Creighton thanked the City of Dos Palos for their efforts hosting the recent City/County Dinner. He announced that the next City/County Dinner will be held at UC Merced. And, he wished everyone a Happy Easter.
City Council Meeting Action Minutes for April 10, 2017 Page 7
Mayor Price announced that he will be extremely busy starting this Thursday preparing for and welcoming Air Force visitors to our community. He stated he can be reached via text at (209) 777-0675. He reported on a recent Elks Club event featuring law enforcement. He praised the Public Works Department for their responsive handling of the streets and gutters during this past wet winter. CLOSED SESSION: Closed Session was not necessary. ADJOURNMENT: The meeting adjourned at 7:22 PM. _________________________________ DON HYLER III CITY CLERK By: Kim Bengtson-Jennings, Recording Secretary
April 11, 2017 Honorable Mayor and Members City Council Meeting of the Atwater City Council of April 24, 2017
HIGHWAY SAFETY IMPROVEMENT PROGRAM (HSIP) CYCLE 7
RECOMMENDATION: It is recommended that the City Council consider:
Adopting Resolution No. 2942-17, authorizing and directing the City Manager or his designee to execute any agreements or documents, in a form approved by the City Attorney, on behalf of the City, relating to HSIP Cycle 7 Project CML-5254(026).
BACKGROUND: In April of 2015 staff submitted a Cycle 7 Highway Safety Improvement Program (HSIP) Application on behalf of the City, for replacing existing permissive left turn phasing for Juniper Avenue with protective left turn phasing (split phasing); installing ADA compliant ramps, high visibility x-walks & ADA compliant ped push buttons; and to modify the signing and striping at the intersection of Shaffer Road at Juniper Avenue. On December 7, 2015 staff received notification that the City was awarded the Highway Safety Improvement Program (HSIP- Cycle 7 funding HSIP7-10-001), total project amount of $183,000 with a local match of 10% and Federal Funds of $164,700. ANALYSIS: As a condition to the payment by the State obligated to this Project, the City of Atwater must accept and comply with the special covenants listed in the Program Supplement. Program Supplement Agreement No. 021-F (EXHIBIT “A”) adopts and incorporates the Administering Agency State Agreement No. 10-5254 F15 for Federal Aid entered into between the City of Atwater and the State on October 7, 2016. No invoices for reimbursement can be processed until the Agreement is fully executed and returned to the Department of Transportation Office of Project Implementation. FISCAL IMPACT: Failure to submit the required Agreement and resolution will cause the awarded funds to be disencumbered and/or de-obligated. Sufficient funding for this project is contained in the Capital Improvement Plan for FY 2016/17; General Fund Capital, HSIP Grant, Account No. 0003.1080.N001. The City’s local match is budgeted in FY 2016/17; Gas Tax Fund, HSIP Grant, Account No. 1011.1080.N001.
Agenda Report – Resolution No. 2942-17 Page 2
CONCLUSION: This staff report is submitted for City Council consideration and possible action. Respectfully submitted,
_________________________________ Scott McBride Interim City Manager/Community Development Director
CITY COUNCIL OF THE
CITY OF ATWATER
RESOLUTION NO. 2942-17
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATWATER AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE ALL DOCUMENTS RELATED TO HIGHWAY SAFETY IMPROVEMENT PROGRAM (HSIP) PROJECT CML-5254(026) SIGNAL MODIFICATION AT INTERSECTION OF SHAFFER ROAD AND JUNIPER AVENUE
WHEREAS, the City of Atwater is eligible to receive Federal and/or State funding for certain projects; and WHEREAS, Program Supplemental Agreement No. 021-F to Administering Agency-State Agreement No. 10-5254 F15 is required to proceed with the project; and WHEREAS, an authorizing Resolution identifying the project and the Official authorized to execute documents on behalf the City must be attached to the Agreement. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Atwater that the City Manager, or his/her designee, is hereby authorized and directed to act on the City’s behalf and sign all required documents related to HSIP Project CML-5254(026) Signal Modification at Intersection of Shaffer Road and Juniper Avenue .
The foregoing resolution is hereby adopted this 24th day of April, 2017.
AYES: NOES: ABSENT: APPROVED: _____________________________ JAMES E. PRICE, MAYOR ATTEST: ______________________________ DON HYLER III, CITY CLERK
April 3, 2017 Board of the Successor Agency Meeting of to the Atwater Redevelopment Agency April 24, 2017
PURCHASE AND SALE AGREEMENT FOR LRPMP PROPERTY 1 RECOMMENDATION: It is recommended that the Board of the Successor Agency to the Redevelopment Agency of the City of Atwater consider:
Adopting Resolution No. SA 2017-3 approving the Purchase and Sale Agreement (“PSA”) for Long Rang Property Management Plan (“LRPMP”) Property 1, 1222 Atwater Boulevard (“Property”), in a form approved by the City Attorney.
BACKGROUND: Pursuant to the dissolution of redevelopment agencies, including the Atwater Redevelopment Agency (“Redevelopment Agency”) per Assembly Bill (“AB”) ABx1 26 and subsequent legislation, AB 1484 and Senate Bill 107 (altogether, “Dissolution Act”), the City of Atwater (“City”) elected to serve as Successor Agency to the former Redevelopment Agency (“Successor Agency”) during the wind-down of the Redevelopment Agency’s activities. The Successor Agency’s actions are subject to review and approval by the Oversight Board of the Successor Agency (“Oversight Board”) and the Department of Finance (“DOF”). At the time of redevelopment dissolution, the Property was one of eight properties owned by the Redevelopment Agency, all of which were included in the Successor Agency’s LRPMP. The LRPMP was prepared pursuant to the Dissolution Act and described the proposed plans for disposition of the properties owned by the Redevelopment Agency. The LRPMP, which was approved by DOF on January 29, 2016, indicated previous attempts by the former Redevelopment Agency to sell the Property to Roger Fragulia (“Purchaser”). The Purchaser holds the ground lease and owns the Atwater Feed Store located and operated on the Property. The existing month to month lease limits the Property’s desirability to developers given a limited financially feasibility to develop the Property. ANALYSIS: Purchaser submitted an offer to the Successor Agency on March 20, 2017. The offered purchase price is $30,000 with the Purchaser’s intent to continue operating the feed store. The property was appraised at a higher value. However, the appraisal was conducted as if the property were vacant, a common practice among appraisers when
Resolution No. SA 2017-3 Page 2 evaluating property with old improvements. To get the property to a vacant state would require demolition of the existing building, which would involve a cost. Keeping the store in operation on the property is in the best interest of the Successor Agency and affected taxing entities. The appraisal notes that current market conditions make it financially infeasible to construct a new commercial development on the Property. Were the Successor Agency to sell the Property to someone other than the Purchaser, the other party may terminate the feed store’s lease, demolish the building, and hold the land vacant until market conditions improve. This would reduce the Property’s value and tax increment for affected taxing entities. Selling the Property to the Purchaser would allow the feed store to remain on the Property and maintain the Property’s value above what it would be as a vacant parcel. The Purchaser has drafted the PSA between the Successor Agency and the Purchaser, enclosed with the respective resolution as EXHIBIT “A”. With the approval of the Successor Agency, as well as review and approval by the Oversight Board, the sale may proceed under the terms outlined in the PSA. FISCAL IMPACT: Like any sale of Successor Agency properties, net sale proceeds would be received by the Successor Agency for payment of enforceable obligations and remittance to affected taxing agencies based on their share of the property taxes within the redevelopment project area. CONCLUSION: The following item is submitted for consideration and possible action. ATTACHMENTS: Attachment 1: Resolution No. 2017-3 with EXHIBIT “A”: Purchase and Sale Agreement. Respectfully submitted, ____________________________ Scott McBride Interim City Manager– Community Development Director
PURCHASE AGREEMENT
This Purchase Agreement (“Agreement”), dated for reference purposes ___, 2017, is entered into
by and between the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE
CITY OF ATWATER, a public body, corporate and politic (“Seller” or “Successor Agency”),
and ROGER FRAGULIA, individually (“Buyer”).
Recitals
A. Seller is the owner of certain real property (“Real Property”), located at 1222
Atwater Boulevard, in the City of Atwater (the “Property”), also known as Assessor’s Parcel
Number 003-170-030, more particularly described in the legal description attached hereto as
Exhibit “A”. The term “Real Property” as used in this Agreement shall include all rights,
privileges, easements and appurtenances benefiting such real property including, without
limitation, all mineral and water rights to the extent owned by Seller and all easements, rights-of-
way and other appurtenances used in or connected with the beneficial use of such Real Property.
B. Buyer desires to purchase from Seller and Seller desires to sell the Property to
Buyer pursuant to the provisions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained
herein, the parties agree as follows:
Agreement
1. Purchase and Sale. Seller agrees to sell and convey to Buyer, and Buyer agrees to
purchase from Seller the Property on the terms and subject to the conditions set forth in this
Agreement. For the purposes of this Agreement, the date upon which this Purchase Agreement
is approved by the Successor Agency and Oversight Board shall hereinafter be referred to as the
“Effective Date.”
2. Purchase Price. The purchase price for the Property is THIRTY THOUSAND
DOLLARS ($30,000.00) (“Purchase Price”), payable as set forth below.
3. Payment of Purchase Price. The Purchase Price for the Property shall be payable
by Buyer as follows:
(a) Deposit. On the first (1st) business day following the Effective Date,
Buyer shall deposit with Fidelity National Title Company, 155 West El Portal Drive, Suite B,
Merced, CA 95348 (“Escrow Holder”) the sum of One Thousand Five Hundred and No/100ths
Dollars ($1,500.00) (“Deposit”). The Deposit shall be held by Escrow Holder and invested in
accordance with Escrow Holder’s customary practice, and the Deposit, and all interest accrued
thereon shall be credited to the Purchase Price upon the Close of Escrow.
(b) Balance Due at Close of Escrow. The balance of the Purchase Price shall
be paid in cash at the Close of Escrow.
4. Escrow.
(a) Opening of Escrow. On or before the third (3rd) business day following
the Effective Date, Buyer shall open an escrow (“Escrow”) with Escrow Holder. Buyer and
Seller agree to execute and deliver to Escrow Holder, in a timely manner, all escrow instructions
necessary to consummate the transaction contemplated by this Agreement. Any such
instructions shall not conflict with, amend or supersede any portion of this Agreement. If there is
any inconsistency between such instructions and this Agreement, this Agreement shall control.
(b) Close of Escrow. For purposes of this Agreement, “Close of Escrow”
shall be defined as the date that the Grant Deed (as hereinafter defined) is recorded in the
Official Records of the County. The Close of Escrow shall occur not later than June 30, 2017,
unless extended by the mutual written consent of the parties.
5. Conditions of Title. It shall be a condition to the Close of Escrow and a covenant
of Seller that title to the Project be conveyed to Buyer by Seller by a Grant Deed, which shall be
in the form customarily used by Escrow Holder in the County (“Grant Deed”), subject only to (a)
a lien to secure payment of real estate taxes, not delinquent; (b) the lien of supplemental taxes,
not delinquent; (c) exceptions which are approved and/or accepted by Buyer in accordance with
this Agreement; and (d) such other title matters affecting the Property created by or with the
written consent of Buyer (collectively, “Approved Conditions of Title”). Seller covenants and
agrees (and it shall be a condition to the Close of Escrow) that between the Effective Date and
the Close of Escrow, it will not, except as specifically provided in this Agreement, cause or
permit the condition of title to the Project to differ from that disclosed by the Preliminary Report
(as hereinafter defined).
6. Conditions to Close of Escrow.
(a) Conditions to Buyer’s Obligations. The Close of Escrow and Buyer’s
obligations to consummate the transactions contemplated by this Agreement are subject to the
satisfaction of the following conditions (or Buyer’s waiver thereof) which are for Buyer’s sole
benefit (and the failure of which shall not constitute a default by Buyer), on or prior to the dates
designated below for the satisfaction of such conditions, or the Close of Escrow in absence of a
specified date:
(i) Title. Buyer shall have the right to approve any and all matters of
and exceptions to title of the Property, including the legal description, as disclosed by the
following documents and instruments (collectively, “Title Documents”): (A) a Preliminary
Report (“Preliminary Report”) issued by Escrow Holder with respect to the Property and all
matters referenced therein; (B) legible copies of all documents, whether recorded or unrecorded,
referred to in such Preliminary Report. The Escrow Holder shall deliver the Title Documents to
Buyer within twenty (20) calendar days following the Effective Date. Buyer shall have twenty
(20) calendar days following its receipt of the Title Documents to give Seller and Escrow Holder
written notice (“Buyer’s Title Notice”) of Buyer’s approval or disapproval, which shall be made
in Buyer’s sole and absolute discretion, of the legal description and every item or exception
disclosed by the Title Documents. The failure of Buyer to give Buyer’s Title Notice to Seller
within the specified time period shall be deemed Buyer’s approval of title to the Property. In the
event that Buyer’s Title Notice disapproves of any matter of title shown in the Title Documents,
Seller shall, within ten (10) calendar days after Buyer’s Title Notice is received by Seller give
Buyer written notice (“Seller’s Title Notice”) of those disapproved title matters, if any, which
Seller is unwilling to remove or unable after reasonable and good faith efforts to have eliminated
from title to the Property by Close of Escrow. In the event that Seller is unable to remove all of
the title matters objected to by Buyer in Buyer’s Title Notice, Buyer shall have seven (7)
calendar days from receipt of Seller’s Title Notice to notify Seller in writing that either (1) Buyer
is willing to purchase the Property subject to such disapproved exceptions, or (2) Buyer elects to
cancel this transaction. In the event this Agreement is canceled pursuant to this Section, the
parties shall have no further obligations under this Agreement, and all monies delivered to
Escrow Holder by Buyer shall immediately be returned to Buyer. Notwithstanding the
foregoing, Buyer hereby objects to all liens evidencing monetary encumbrances (other than liens
for non-delinquent real estate taxes and supplemental taxes) and Seller agrees to cause all such
liens to be eliminated, at Seller’s sole cost, on or prior to the Close of Escrow.
(ii) Environmental Assessment. Within 30 days of the Effective Date,
Buyer, its agents, contractors and subcontractors shall have the right to enter upon the Project at
reasonable times during ordinary business hours to make any and all inspections and tests as may
be necessary or desirable in Buyer’s sole judgment and discretion, including, but not limited to, a
Phase I Environmental Site Assessment (“Phase I Report”) Buyer shall use its good faith efforts
not to interfere with the use of the Property. Buyer shall indemnify and hold Seller and the
Property harmless from any and all damage arising out of or as a result of the negligence of
Buyer, its agents, contractors and/or subcontractors in connection with such entry and/or
activities upon the Property. In the event Buyer disapproves of the condition of the Property as a
result of its activities pursuant to this Section, Buyer shall have the right to terminate this
Agreement, in which case, the parties shall have no further obligations under this Agreement,
and all monies delivered to Escrow Holder by Buyer shall be immediately returned to Buyer.
Buyer will deliver a copy of any and all reports to seller upon termination of this agreement that
buyer has conducted on the property. Buyer will also repair and damage caused by buyer in its
investigations and shall indemnify seller.
(iii) Title Insurance. As of the Close of Escrow, Title Company (as
hereinafter defined) shall have issued or shall have committed to issue the Title Policy (as
hereinafter defined) to Buyer.
(iv) Seller’s Obligations. As of the Close of Escrow, Seller shall have
performed all of the obligations required to be performed by Seller under this Agreement.
(v) Seller’s Representations. All representations and warranties made
by Seller to Buyer in this Agreement shall be true and correct as of the Close of Escrow.
(b) Conditions to Seller’s Obligations. The Close of Escrow and Seller’s
obligations to consummate the transaction contemplated by this Agreement are subject to the
satisfaction of the following conditions (or Seller’s waiver thereof) which are for Seller’s sole
benefit, on or prior to the dates designated below for the satisfaction of such conditions, or the
Close of Escrow in absence of a specified date:
(i) Buyer’s Obligations. Buyer shall have timely performed all of the
obligations required by the terms of this Agreement to be performed by Buyer.
(ii) Buyer’s Representations. All representations and warranties made
by Buyer to Seller in this Agreement shall be true and correct as of the Close of Escrow.
(c) Failure of Condition to Close of Escrow. Except as provided in Section
6(a) or 6(b), in the event any of the conditions set forth in Section 6(a) or 6(b) are not timely
satisfied or waived, for a reason other than the default of Buyer or Seller, this Agreement shall
terminate, and if applicable, the Deposit, and all interest accrued thereon, and all other monies
delivered to Escrow Holder by Buyer shall be immediately be returned to Buyer, and the parties
shall have no further obligations hereunder.
7. Deposits By Seller. Unless otherwise provided in this Section, at least one (1)
business day prior to the Close of Escrow, Seller shall deposit with Escrow Holder the following
documents:
(a) Grant Deed. The Grant Deed, duly executed and acknowledged in
recordable form by Seller, conveying fee title to the Project to Buyer subject only to the
Approved Conditions of Title.
(b) California Franchise Tax Withholding. Evidence satisfactory to Buyer
and Escrow Holder that Seller is exempt from the provisions of the withholding requirements of
the California Revenue and Taxation Code, as amended, and that neither Buyer nor Escrow
Holder is required to withhold any amounts from the Purchase Price pursuant to such provisions.
8. Deposits By Buyer. At least one (1) business day prior to the Close of Escrow,
Buyer shall deposit or cause to be deposited with Escrow Holder the required funds which are to
be applied towards the payment of the Purchase Price.
9. Issuance of Title Insurance. At the Close of Escrow, Buyer shall cause Escrow
Holder’s title insurer, as reasonably approved by Buyer (“Title Company”), to issue to Buyer its
standard form California Land Title Association (CLTA) Owner’s Policy of Title Insurance
showing fee title to the Project vested in Buyer subject only to the Approved Conditions of Title,
with any endorsements reasonably requested by Buyer (“Title Policy”). The Title Policy shall be
issued with liability in an amount equal to the Purchase Price. Buyer shall pay for the expense of
the Title Policy.
10. Costs and Expenses. Except as otherwise specified in this Agreement, Seller shall
pay for (a) all escrow fees and costs; and (b) any document recording charges, (c) documentary
transfer tax charged by the County. Buyer and Seller shall each pay all legal and professional
fees and fees of other consultants incurred by Buyer and Seller, respectively.
11. Prorations.
(a) Taxes/Assessments. All non-delinquent real estate taxes on the Project
shall be prorated as of 11:59 p.m. on the day prior to the Close of Escrow based on the actual
current tax bill, but if such tax bill has not yet been received by Seller by the Close of Escrow,
then the current year’s taxes shall be deemed to be One Hundred percent (100%) of the amount
of the previous year’s tax bill for the Project. All delinquent taxes and all assessments, if any, on
the Property shall be paid at the Close of Escrow from funds accruing to Seller.
(b) Other Expenses. All other expenses for the Property shall be prorated as
of 11:59 p.m. on the day prior to the Close of Escrow between the parties based upon the latest
available information.
(c) Corrections. If any errors or omissions are made regarding adjustments
and prorations as set forth herein, the parties shall make the appropriate corrections promptly
upon discovery thereof. If any estimates are made at the Close of Escrow regarding adjustments
or prorations, the party shall make the appropriate correction promptly when accurate
information becomes available. Any corrected adjustment or proration shall be paid in cash to
the party entitled thereto.
12. Seller’s Representations and Warranties. In consideration of the Buyer entering
into this Agreement, and as an inducement to Buyer to purchase the Property, Seller makes the
following representations and warranties, each of which is material and is being relied upon by
Buyer (and the continued truth and accuracy of which shall constitute a condition precedent to
Buyer’s obligation hereunder):
(a) Seller’s Authority.
(i) Upon approval by the Successor Agency and the Oversight Board,
Seller has the legal power, right and authority to enter into this Agreement and the instruments
referenced herein, and to consummate the transaction contemplated hereby;
(ii) All requisite action (corporate, trust, partnership or otherwise) has
been taken by Seller in connection with the entering into this Agreement, the instruments
referenced herein, and the consummation of the transaction contemplated hereby. No consent of
any partner, shareholder, trustee, trustor, beneficiary, creditor, investor, judicial or administrative
body, governmental authority or other party is required;
(iii) The individuals executing this Agreement and the instruments
referenced herein on behalf of Seller and the partners of Seller, if any, have the legal power,
right, and actual authority to bind Seller to the terms and conditions hereof and thereof; and
(iv) Neither the execution and delivery of this Agreement and the
documents and instruments referenced herein, nor the occurrence of the obligations set forth
herein, nor the consummation of the transaction contemplated herein, nor compliance with the
terms of this Agreement and the documents and instruments referenced herein conflict with or
result in the material breach of any terms, conditions or provisions of, or constitute a default
under, instrument to which Seller is a party or affecting the Property.
(b) Documents. All documents delivered to Buyer by Seller pursuant to this
Agreement are true and correct copies of originals.
13. Notices. All notices or other communications required or permitted hereunder
shall be in writing, and shall be personally delivered or sent by registered or certified mail,
postage prepaid, return receipt requested, or sent by electronic facsimile and shall be deemed
received upon the earlier of (i) if personally delivered, the date of delivery to the address of the
person to receive such notice, (ii) if mailed, on the date of posting by the United States Post
Office, or (iii) if given by electronic facsimile, when received by the other party.
A RESOLUTION OF THE CITY OF ATWATER AS SUCCESSOR AGENCY TO THE ATWATER REDEVELOPMENT AGENCY AUTHORIZING THE EXECUTION OF A PURCHASE AND SALE AGREEMENT WITH ROGER FRAGULIA FOR THE ACQUISITION OF PROPERTY 1 (APN 003-170-030) PURSUANT TO THE LONG RANGE PROPERTY MANAGEMENT PLAN
WHEREAS, the City of Atwater elected to serve as the Successor Agency to the former Atwater Redevelopment Agency (“Successor Agency”) pursuant to Assembly Bill x1 26, Assembly Bill 1484, and Senate Bill 107 (altogether, “Dissolution Act”) as codified in the California Health & Safety Code; and WHEREAS, the property located at 1222 Atwater Boulevard (“Property”), Merced County Assessor’s Parcel Number 003-170-030, was included as Property 1 in the Successor Agency’s Long-Range Property Management Plan (“LRPMP”), which was prepared pursuant to the Dissolution Act and described the proposed plans for disposition of 2 properties owned by the Atwater Redevelopment Agency at the time of redevelopment dissolution; and
WHEREAS, on January 29, 2016, the City received notification from the California Department of Finance (“DOF”) approving the Successor Agency’s Amended LRPMP which designates the Property for sale; and
WHEREAS, the Successor Agency and the Atwater Redevelopment Agency approached Roger Fragulia (“Purchaser”), owner of the feed store located on the Property, several times regarding purchasing the Property; and
WHEREAS, the Purchaser submitted an offer and a Purchase and Sale Agreement (“PSA”) between the Purchaser and the Successor Agency to effectuate the sale of the Property, enclosed herewith as EXHIBIT “A”.
Resolution No. SA 2017-3 Page 2
NOW, THEREFORE, the Successor Agency to the Atwater Redevelopment Agency does hereby resolve as follows: Section 1. Recitals. The Recitals set forth above are true and correct and incorporated herein by reference. Section 2. Approval of Purchase and Sale Agreement. The Successor Agency hereby approves the Purchase and Sale Agreement with Roger Fragulia for the acquisition of the Property, located at 1222 Atwater Boulevard, and hereby authorizes the Executive Director to execute same, in the form attached herewith, subject to the approval by the Oversight Board for the Successor Agency. Staff is hereby directed to present the PSA in the form attached herewith at a duly-noticed public meeting of the Oversight Board. The foregoing resolution is hereby adopted this 24th day of April, 2017. AYES: NOES: ABSENT: ABSTAINED: APPROVED: _____________________________ JAMES E. PRICE, MAYOR ATTEST: ______________________________ DON HYLER III, CITY CLERK
Resolution No. SA 2017-3 Page 3
STATE OF CALIFORNIA ) COUNTY OF MERCED ) ss. CITY OF ATWATER )
I, DON HYLER III, hereby certify that I am the duly appointed City Clerk of the City of Atwater and that the foregoing resolution was duly adopted at a regular meeting of the Successor Agency held on the 24th day of April 2017.
_______________________________ Don Hyler III City Clerk
EXHIBIT A PURCHASE AND SALE AGREEMENT
April 10, 2017 Honorable Mayor and Members City Council Meeting of to the Atwater City Council April 24, 2017
CITY OF ATWATER AFFORDABLE HOUSING CONSULTING SERVICES PROPOSAL
RECOMMENDATION: It is recommended that the City Council consider:
1. Adopting Resolution No. 2950-17 approving the proposal for affordable housing
consulting services for Fiscal Year (“FY”) 2016-17 provided by RSG, Inc., in a form approved by the City Attorney; and
Affordable Housing Consulting Services. 3. Authorizing and directing the City Manager to execute the agreement on behalf
of the City of Atwater. BACKGROUND: Pursuant to the dissolution of redevelopment agencies, including the Atwater Redevelopment Agency (“Redevelopment Agency”), per Assembly Bill (“AB”)x1 26 and subsequent legislation, AB 1484 and Senate Bill (“SB”) 107 (altogether, “Dissolution Act”), the City of Atwater (“City”) elected to serve as Housing Successor Agency to the former Redevelopment Agency (“Housing Successor Agency”) during the wind-down of the Redevelopment Agency’s activities. The Housing Successor Agency is required to manage the affordable housing assets of the former Redevelopment Agency and to submit annual reports detailing assets owned, funds expended, and compliance with certain provisions of the Dissolution Act relating to affordable housing. The complexities and requirements of the Dissolution Act and the limited budget of the City make it difficult for the City to manage the duties and responsibilities of the Housing Successor Agency single-handedly. RSG Inc. (“RSG”), which has helped the City to fulfill its non-housing Dissolution Act obligations as the Successor Agency to the former Redevelopment Agency (“Successor Agency”), has therefore submitted a proposal for Successor Agency affordable housing consulting services for FY 2016-17. ANALYSIS: RSG would assist primarily with three tasks that the Housing Successor Agency is required to complete.
1. Identify options and next steps for the rehabilitation of the property located at 1550 Shaffer Road
The City purchased the house located at 1550 Shaffer Road with a Neighborhood Stabilization Program (“NSP”) grant with the intention to rehabilitate the property and dedicate it for affordable housing. Only one bidder submitted a bid for the rehabilitation work. Before the bidder could start work, the California Department of Housing and Community Development (“HCD”), who administered the NSP grants at the state level, requested documentation. The City was unable to provide all requested documentation before the grant expired. The City would like to understand its options: whether it can arrange for the rehabilitation of the property and use $160,000 in NSP funds remaining on hand. RSG will contact HCD to identify what is required of the City to proceed with the property’s rehabilitation. RSG will provide the City next steps with the goal of contracting with a provider who will advertise for bids, award a contract, and monitor the construction.
2. Prepare the Housing Successor Agency Annual Report (“Report”) for FYs 2013-14, 2014-15, and 2015-16
SB 341 and AB 1793 created new annual reporting requirements in 2014 and 2015 for successor housing agencies. The City must prepare an annual report that details compliance with expenditure limitations, describes property disposition efforts, provides an inventory of homeownership units, and other items. The Report is due by April 1 annually with the City’s Housing Element Annual Progress Report. The first Report was due in April 2015. The City has not submitted a report to date and needs to prepare overdue reports for FYs 2013-14, 2014-15, and 2015-16. RSG will prepare three separate Reports for FYs 2013-14, 2014-15, and 2015-16. The Reports will integrate financial data provided by City staff, including data about the balance, deposits, and expenditures pertaining to the Low and Moderate Income Housing Asset Fund (“LMIHAF”). The Reports will also include information about assets reported on the City’s Housing Assets Transfer form. Assets transferred to the Housing Successor Agency include real property, affordability covenants, loans and grants, and rents.
3. File an extension to the deadline to commence development of or sell
housing assets acquired by the former Redevelopment Agency The Housing Successor Agency is required to develop or dispose of former Redevelopment Agency properties transferred to it within five years. Based on former Redevelopment law as amended by SB 341, the City, as the Housing Successor Agency, is required to initiate activities for the development of such assets as affordable housing or sell the assets within five years of the California Department of Finance approving the property as a housing asset. For the City, this occurred on September 5,
2012 with the approval of the Housing Successor Agency’s Housing Assets Transfer Form. The Housing Successor Agency’s legislative body may, by resolution, extend the September 5, 2017 deadline for one additional five-year period. The Housing Successor Agency reported four properties on its Housing Asset Transfer Form, they are listed by number as they appear in the document: (EXHIBIT A)
4. 980-990 Cedar Avenue 5. Bell Crossing Phase 1 Lot AA – 4.09 acres 6. Bell Crossing Phase 1 Lot BB – 5.66 acres 7. 1786 Eucalyptus Street – affordability covenant only, privately owned residence
RSG will assist the City in preparing the resolution to extend the development or disposition deadline of September 5, 2017 for these properties. FISCAL IMPACT: RSG’s proposal has a not-to-exceed budget of $15,000. These affordable housing tasks are payable from the Housing Successor Agency’s LMIHAF. The fund has monies due to the recent $67,000 repayment of a former redevelopment affordable housing loan and will receive additional revenue from the (non-housing) Successor Agency’s repayment of the Supplemental Educational Revenue Augmentation Fund loan. The proposal’s funding will not affect the Successor Agency’s non-housing funds or the City’s General Fund. CONCLUSION: This staff report is submitted for Housing Successor Agency consideration and possible action. Respectfully submitted, _____________________ Scott McBride Interim City Manager-Community Development Director
Former Redevelopment Agency: Atwater Redevelopment Agency
Successor Agency to the Former Redevelopment Agency: Successor Agency to the former Redevelopment Agency of the City of Atwater
Entity Assuming the Housing Functionsof the former Redevelopment Agency: Housing Successor Agency to the former Redevelopment Agency of the City of Atwater
Entity Assuming the Housing FunctionsContact Name: Scott McBride Title Acting Community Development Dir. Phone (209) 357-6369 [email protected]
Entity Assuming the Housing FunctionsContact Name: Title Phone
The following Exhibits noted with an X in the box are included as part of this inventory of housing assets:
Exhibit A - Real Property XExhibit B- Personal PropertyExhibit C - Low-Mod EncumbrancesExhibit D - Loans/Grants Receivables XExhibit E - Rents/OperationsExhibit F- RentsExhibit G - Deferrals X
Prepared By: Scott McBride, Acting Community Development Director
Date Prepared: 31-Jul-12
E-Mail Address
E-Mail Address
All assets transferred to the entity assuming the housing functions between February 1, 2012 and the date the exhibits were created are included in this housing assets list.
DEPARTMENT OF FINANCE HOUSING ASSETS LIST
ASSEMBLY BILL X1 26 AND ASSEMBLY BILL 1484(Health and Safety Code Section 34176)
Exhibit A - Real Property
Item #Carrying Value
of Asset
Total square footage
Is the property encumbered by a low-mod housing
covenant?
Source of low-mod housing covenant
b/
Date of transfer to Housing Successor
Agency
Construction or acquisition cost funded
with Low-Mod Housing Fund
monies
Construction or acquisition costs funded
with other RDA funds
Construction or acquisition costs funded with non-RDA
a/ Asset types may include low-mod housing, mixed-income housing, low-mod housing with commercial space, mixed-income housing with commercial space.
b/ May include California Redevelopment Law, tax credits, state bond indentures, and federal funds requirements.
Square footage reserved for low-
mod housingLegal Title and Description
N/A, Vacant Parcel
N/A, Vacant Parcel
N/A, Vacant Parcel
980-990 Cedar Avenue, LDS CC MITCHELL POR LOT 1 (APN: 003-
071-001)
Bell Drive Property, Bell Crossing Phase 1 Lot AA (APN:001-134-
015)- 4.09 acre parcel
Bell Drive Property, Bell Crossing Phase 1 Lot BB (APN:001-134-
012) - 5.66 acre parcel
N/A1786 Eucalyptus Street: Merced
County Recorder, Document #2009-062622
Low-Mod Housing
Low-Mod Housing
Low-Mod Housing
Inventory of Assets Received Pursuant to Health and Safety Code section 34176 (a) (2) Housing Successor Agency to the former Redevelopment Agency of the City of Atwater
Exhibit B - Personal Property
Item #Carrying Value
of Asset
Date of transfer to Housing
Successor Agency
Acquisition cost funded
with Low-Mod Housing Fund
monies
Acquisition costs funded with
other RDA funds
Acquisition costs funded with non-RDA
funds
Date of acquisition by
the former RDA
123456789
1011121314151617181920
Type of Asset a/ Description
Housing Successor Agency to the former Redevelopment Agency of the City of AtwaterInventory of Assets Received Pursuant to Health and Safety Code section 34176 (a) (2)
a/ Asset types any personal property provided in residences, including furniture and appliances, all housing-related files and loan documents, office supplies, software licenses, and mapping programs, that were acquired for low and moderate income housing purposes, either by purchase or through a loan, in whole or in part, with any source of funds.
Exhibit C - Low-Mod Encumbrances
Item #Contractual
counterparty
Total amount currently
owed for the Enforceable Obligation
Is the property encumbered by
a low-mod housing
covenant?
Source of low-mod housing covenant b/
Current owner of
the property
Construction or acquisition cost
funded with Low-Mod
Housing Fund monies
Construction or acquisition costs
funded with other RDA funds
Construction or acquisition costs funded with non-RDA
funds
Date of construction or acquisition of the property
123456789
1011121314151617181920
a/ May include low-mod housing, mixed-income housing, low-mod housing with commercial space, mixed-income housing with commercial space.
b/ May include California Redevelopment Law, tax credits, state bond indentures, and federal funds requirements.
Date contract for Enforceable
Obligation was executed
Type of housing built or acquired with
enforceably obligated funds a/
Housing Successor Agency to the former Redevelopment Agency of the City of AtwaterInventory of Assets Received Pursuant to Health and Safety Code section 34176 (a) (2)
Exhibit D - Loans/Grants Receivables
Item #Amount of the loan
or grantDate the loan or
grant was issuedPurpose for which the funds
were loaned or granted
Are there contractual requirements specifying the purposes for which the funds may be used?
Repayment date, if the funds are for a
loanInterest rate
of loan
Current outstanding loan
balance
1 61,500.00 12/30/2009Rehabilitation costs for an
owner-occupied single family residential unit
Yes, Secured Promissory Note 30 years 0% 61,500.00
2
34567891011121314151617181920
Was the Low-Mod Housing Fund amount issued for a loan or a
grant?Person or entity to whom the loan
or grant was issued
Loan Kathy Ostrander
Housing Successor Agency to the former Redevelopment Agency of the City of AtwaterInventory of Assets Received Pursuant to Health and Safety Code section 34176 (a) (2)
Exhibit E - Rents/Operations
Item #
Type of property with which they payments are associated b/
Property owner
Entity that collects the payments
Entity to which the collected payments are
ultimately remitted
Purpose for which the
payments are used
Is the property encumbered by a low-mod
housing covenant?
Source of low-mod housing covenant c/
Item # from Exhibit A the
rent/operation is associated
with (if applicable)
123456789
1011121314151617181920
c/ May include California Redevelopment Law, tax credits, state bond indentures, and federal funds requirements.
b/ May include low-mod housing, mixed-income housing, low-mod housing with commercial space, mixed-income housing with commercial space.
a/ May include revenues from rents, operation of properties, residual receipt payments from developers, conditional grant repayments, costs savings and proceeds from refinancing, and principal and interest payments from homebuyers subject to enforceable income limits.
Type of payment a/
Housing Successor Agency to the former Redevelopment Agency of the City of AtwaterInventory of Assets Received Pursuant to Health and Safety Code section 34176 (a) (2)
Exhibit F - Rents
Item #
Type of property with which the payments are associated b/
Property owner
Entity that collects the payments
Entity to which the collected payments are
ultimately remitted
Purpose for which the
payments are used
Is the property encumbered by a low-mod
housing covenant?
Source of low-mod housing covenant c/
Item # from Exhibit A the rent is associated with
(if applicable)123456789
1011121314151617181920
b/ May include low-mod housing, mixed-income housing, low-mod housing with commercial space, mixed-income housing with commercial space.
c/ May include California Redevelopment Law, tax credits, state bond indentures, and federal funds requirements.
Type of payment a/
a/ May include rents or home loan payments.
Housing Successor Agency to the former Redevelopment Agency of the City of AtwaterInventory of Assets Received Pursuant to Health and Safety Code section 34176 (a) (2)
Exhibit G - Deferrals
Item #
Fiscal year in which funds
were deferred Amount deferred
Interest rate at which
funds were to be repaid
Current amount owed
Date upon which funds were to be
repaid
1 FY 2009-10 259,264.00 0% 194,449.00 6/30/2015
23456789
1011121314151617181920
Purpose for which funds were deferred
Loans made from Agency Housing Fund for the 2009-10
SERAF payment
Housing Successor Agency to the former Redevelopment Agency of the City of AtwaterInventory of Assets Received Pursuant to Health and Safety Code section 34176 (a) (2)
CITY COUNCIL
OF THE CITY OF ATWATER
RESOLUTION NO. 2950-17
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATWATER APPROVING THE PROPOSAL FOR AFFORDABLE HOUSING CONSULTING SERVICES FOR FISCAL YEAR 2016-17 PROVIDED BY RSG INC.
WHEREAS, the City of Atwater elected to serve as the Housing Successor Agency to the former Atwater Redevelopment Agency (“Housing Successor Agency”) and as the (non-housing) Successor Agency to the former Atwater Redevelopment Agency (“Successor Agency”) pursuant to Assembly Bill x1 26, Assembly Bill 1484, and Senate Bill 107 as codified in the California Health & Safety Code; and WHEREAS, the complexities and requirements of the Redevelopment dissolution process and the limited budget of the City make it difficult for the City to manage the duties and responsibilities of the Housing Successor Agency single-handedly; and
WHEREAS, RSG Inc. (“RSG”) has provided consulting services since the beginning of Redevelopment dissolution for the Successor Agency to fulfill its obligations; and
WHEREAS, RSG has submitted a proposal for affordable housing consulting services for Fiscal Year (“FY”) 2016-17 detailing the work that the Housing Successor Agency needs to complete during the fiscal year and how RSG will help to realize that work; and
WHEREAS, RSG’s affordable housing consulting services are payable from the Housing Successor Agency’s Low and Moderate Income Housing Asset Fund, which is separate from and will not affect the Successor Agency’s non-housing funds or the City’s General Fund; and
WHEREAS, City Staff acting in the interest of the Housing Successor Agency has reviewed and supports RSG’s proposal (EXHIBIT A).
NOW, THEREFORE, the Atwater City Council does hereby resolve as follows: Section 1. Recitals. The Recitals set forth above are true and correct and incorporated herein by reference.
Resolution No. 2950-17 Page 2
Section 2. Approve RSG’s proposal for Successor Agency affordable housing consulting services. The City Council does hereby accept and approves RSG’s proposal for affordable housing consulting services for Fiscal Year 2016-17. The foregoing resolution is hereby adopted this 24th day of April, 2017. AYES: NOES: ABSENT: ABSTAINED: APPROVED: _____________________________ JAMES E. PRICE, MAYOR ATTEST: ______________________________ DON HYLER III, CITY CLERK
STATE OF CALIFORNIA ) COUNTY OF MERCED ) ss. CITY OF ATWATER )
I, DON HYLER III, hereby certify that I am the duly appointed City Clerk of the City of Atwater and that the foregoing resolution was duly adopted at a regular meeting of the Successor Agency held on the 10th day of April 2017.
_______________________________ DON HYLER III CITY CLERK
EXHIBIT A
PROPOSAL FOR SUCCESSOR AGENCY AFFORDABLE HOUSING CONSULTING SERVICES,
FISCAL YEAR 2016-17
Affordable Housing Consulting Services Agreement between City of Atwater and Rosenow Spevacek Group Inc. Page 1 of 13
PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF ATWATER AND
ROSENOW SPEVACEK GROUP INC.
This Professional Services Agreement (“Agreement”) for affordable housing consulting services is made by and between the City of Atwater (“City”) and Rosenow Spevacek Group Inc. (“RSG” or “Consultant”) as of April 10, 2017 (the “Effective Date”). City and Consultant shall be referred to herein separately as a “Party” and collectively as “Parties”. Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City Affordable Housing Consulting Services as described in the Scope of Services attached hereto and incorporated herein as Exhibit “A”, at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall remain in effect until cancelled by either Party or amended by the Parties, Consultant shall complete the work described in Exhibit “A”, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant’s obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed Fifteen Thousand Dollars ($15,000.00) on a time-and-materials basis and in accordance with the hourly rates and charges more particularly described in the Fee Schedule attached hereto and incorporated herein as Exhibit “B”, notwithstanding any contrary indications that may be contained in Consultant’s proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant’s Fee Schedule, attached as Exhibit “B”, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall
Affordable Housing Consulting Services Agreement between City of Atwater and Rosenow Spevacek Group Inc. Page 2 of 13
submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice,
etc.; The beginning and ending dates of the billing period; A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement, and the percentage of completion;
At City’s option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense;
The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder;
The Consultant’s signature; Consultant shall give separate notice to the City when the total number of hours
worked by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds the amount allowed under this Agreement and any other agreement between Consultant and City. Such notice shall include an estimate of the time necessary to complete work described in Exhibit “A” and the estimate of time necessary to complete work under any other agreement between Consultant and City, if applicable.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for
services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this
Agreement within 60 days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed.
Affordable Housing Consulting Services Agreement between City of Atwater and Rosenow Spevacek Group Inc. Page 3 of 13
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the Fee Schedule attached hereto as Exhibit “B”. 2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit “B”, and shall
not exceed the amounts described in Exhibit “B”. Expenses not listed in Exhibit “B” are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes. 2.8 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence that such insurance is in effect to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
Affordable Housing Consulting Services Agreement between City of Atwater and Rosenow Spevacek Group Inc. Page 4 of 13
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than $1,000,000 per accident. In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (most recent edition), Code 1 (any auto). No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
b. City, its officers, officials, and employees, are to be covered as additional
insured as respects: liability arising out of work or operations performed by or on behalf of the Consultant; or automobiles owned, leased, hired, or borrowed by the Consultant
Affordable Housing Consulting Services Agreement between City of Atwater and Rosenow Spevacek Group Inc. Page 5 of 13
c. For any claims related to this Agreement or the work hereunder, the
Consultant’s insurance covered shall be primary insurance as respects the City, its officers, officials, and employees,. Any insurance or self-insurance maintained by the City, its officers, officials, or employees shall be excess of the Consultant’s insurance and shall not contribute with it.
d. Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be canceled by either party, except after prior written notice has been provided to the City per standard ISO ACORD form wording.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 Claims-made limitations. The following provisions shall apply if the professional
liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least two years after completion of the Agreement or the work, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another
claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must purchase an extended period coverage for a minimum of two years after completion of work under this Agreement.
4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish City with certificates of insurance evidencing required policies delivered to Consultant by the insurer, including complete copies of all
Affordable Housing Consulting Services Agreement between City of Atwater and Rosenow Spevacek Group Inc. Page 6 of 13
endorsements attached to those certificates. All copies of policies and endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Consultant beginning work, it shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time.
4.4.3 Deductibles and Self-Insured Retentions. Consultant shall disclose to and
obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement.
4.4.4 Wasting Policies. Except for Professional Liability insurance policy, no policy
required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
4.4.5 Waiver of Subrogation. With respect to Commercial General and Auto Liability
insurance coverage only, Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to affect this waiver of subrogation.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insured’s under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage’s for subcontractors shall be subject to all of the requirements stated herein.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide
or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or
Terminate this Agreement.
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Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES. Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, and authorized agents from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) to the extent caused by Consultant’s negligence or willful misconduct in its performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the negligence or willful misconduct of City. The Consultant’s obligation to defend and indemnify, to the extent caused by Consultant’s negligence or willful misconduct, shall not be excused because of the Consultant’s inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days, to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense, whichever occurs first. With respect to third party claims against the Consultant, the Consultant waives any and all rights of any type to express or implied indemnity against the Indemnities. Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and
Affordable Housing Consulting Services Agreement between City of Atwater and Rosenow Spevacek Group Inc. Page 8 of 13
all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and
its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the
basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.
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Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
Consultant may cancel this Agreement upon 30 days’ written notice to City and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms
of this Agreement, City’s remedies shall include, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
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8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit “A” not
finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit “A” that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties.
9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of 3 years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
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party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Merced or in the United States District Court for the Eastern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code § 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal
Affordable Housing Consulting Services Agreement between City of Atwater and Rosenow Spevacek Group Inc. Page 12 of 13
prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by Community
Development Director McBride ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to: Rosenow Spevacek Group, Inc. Tara E. Matthews, Principal 309 West 4th Street Santa Ana, CA 92701-4502
Any written notice to City shall be sent to:
City of Atwater Scott McBride, Interim City Manager - Community Development Director 750 Bellevue Road Atwater, CA 95301
10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example.
_________________________________________ Seal and Signature of Registered Professional with report/design responsibility.
10.12 Integration. This Agreement, including the Scope of Services attached hereto and
incorporated herein as Exhibit “A” and the Fee Schedule attached hereto and incorporated herein as Exhibit “B”, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.
Affordable Housing Consulting Services Agreement between City of Atwater and Rosenow Spevacek Group Inc. Page 13 of 13
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
The Parties have executed this Agreement as of the Effective Date. CITY OF ATWATER CONSULTANT _______________________________ ______________________________ Scott McBride, Interim City Manager Tara E. Matthews, Principal Rosenow Spevacek Group Inc. Attest: ____________________________ Don Hyler III, City Clerk Approved as to Form, Substance and Legality: ____________________________ Thomas Terpstra, City Attorney
Consulting Services Agreement between City of Atwater and RSG--Exhibit “A” Page 1 of 3
EXHIBIT A
SCOPE OF SERVICES
. PROPOSAL FOR AFFORDABLE HOUSING CONSULTING SERVICES
RSG, Inc. (“RSG”) is pleased to present this proposal to the City of Atwater (“City”) to provide affordable housing consulting services. This proposal covers three components of such services:
1. Identify options and next steps for the rehabilitation of the property located at 1550 Shaffer Road.
2. Prepare the Housing Successor Agency Annual Report (“Report”) for Fiscal Years 2013-14, 2014-15, and 2015-16.
3. File an extension to the deadline to commence development of or sell housing assets acquired by the former Atwater Redevelopment Agency (“RDA”).
The City serves as the Housing Successor Agency to the former Atwater Redevelopment Agency (“Housing Successor”). The City is interested in component #1 to avoid the further deterioration of the property at 1550 Shaffer Road. Components #2 and #3 are legal requirements of the Housing Successor. This letter presents our scope of services and fee estimate for all three components. We welcome the opportunity to discuss this proposal with you in further detail.
SCOPE OF SERVICES
1. Options and Next Steps for 1550 Shaffer Road
The City purchased the house located at 1550 Shaffer Road with a Neighborhood Stabilization Program (“NSP”) grant with the intention to rehabilitate the property and dedicate it for affordable housing. Only one bidder submitted a bid for the rehabilitation work. Before the bidder could start work, the California Department of Housing and Community Development (“HCD”), who administered the NSP grants at the state level, requested documentation. The City was unable to provide all requested documentation before the grant expired. The City would like to understand its options: whether it can arrange for the rehabilitation of the property and use $160,000 in NSP funds remaining on hand.
RSG will contact HCD to identify what is required of the City to proceed with the property’s rehabilitation. RSG will provide the City next steps with the goal of contracting with a provider who will advertise for bids, award a contract, and monitor the construction.
Consulting Services Agreement between City of Atwater and RSG--Exhibit “A” Page 2 of 3
2. Housing Successor Agency Annual Reports
Senate Bill 341 and Assembly Bill 1793 created new annual reporting requirements in 2014 and 2015 for successor housing agencies. The City must prepare an annual report that details compliance with expenditure limitations, describes property disposition efforts, provides an inventory of homeownership units, and other items. The Report is due by April 1 annually with the City’s Housing Element Annual Progress Report. The first Report was due in April 2015. The City has not submitted a report to date and needs to prepare overdue reports for Fiscal Years 2013-14 and 2014-15. The next report for Fiscal Year 2015-16 is due on April 1, 2017. RSG will prepare three separate Reports for Fiscal Years 2013-14, 2014-15, and 2015-16. RSG will be available to attend a City Council meeting if necessary to present the Reports and explain the governing legislation. The Reports will integrate financial data provided by City staff, including data about the balance, deposits, and expenditures pertaining to the Low and Moderate Income Housing Asset Fund (“Housing Asset Fund”). The Reports will also include information about assets reported on the City’s Housing Assets Transfer form. Assets transferred to the City include real property, affordability covenants, loans and grants, and rents. The Reports will include the following information for each fiscal year:
The amounts deposited into the Housing Asset Fund
A statement of the balance of the Housing Asset Fund
A description of Housing Asset Fund expenditures by category
The statutory value of real property and loans receivable
A description of funds transferred to the Housing Successor Agency
A description of projects that receive funding through the ROPS, if any
The status of efforts to dispose of former RDA properties transferred to the Housing Successor, if any (there is a five-year development or disposition deadline)
An update on inclusionary and replacement housing obligations remaining from the former RDA, if any
Compliance with expenditure limitations within a 5-year compliance period
The percentage of senior deed-restricted units assisted in the last 10 years
The amount of excess surplus
An inventory of homeownership units assisted by the former RDA or Housing Successor
The amounts received from repayment of any City loans to the former RDA through the ROPS Upon completion, all three Reports will be submitted with the City’s Housing Element Annual Report by May 1, 2017 to HCD.
3. Deadline extension to develop or sell housing assets
As mentioned in the previous section of this proposal, the Housing Successor is required to develop or dispose of former RDA properties transferred to the Housing Successor within five years. Based on former Redevelopment law as amended by Senate Bill 341, the City, as the Housing Successor, is required to initiate activities for the development of such assets as affordable housing or sell the assets within five years of the Department of Finance approving the property as a housing asset. For the City, this occurred on September 5, 2012 with the approval of the Housing Successor’s Housing Assets Transfer Form. The Housing Successor’s legislative body may, by resolution, extend the September 5, 2017 deadline for one additional five-year period.
Consulting Services Agreement between City of Atwater and RSG--Exhibit “A” Page 3 of 3
The Housing Successor reported four properties on its Housing Asset Transfer Form:
1. 980-990 Cedar Avenue,
2. Bell Crossing Phase 1 Lot AA,
3. Bell Crossing Phase 1 Lot BB, and
4. 1786 Eucalyptus Street. RSG will assist the City in preparing the resolutions to extend the development or disposition deadline of September 5, 2017 for these properties. If desired, RSG will be available to attend a City Council meeting to present the resolution and explain its necessity and the governing legislation.
PROJECT TEAM This engagement will be led by Tara Matthews, Principal, with Dima Galkin, Associate, serving as the Project Manager providing oversight and day-to-day management of this engagement. Brett Poirier, Analyst, will also assist. Other RSG staff may be assigned as needed. Staff resumes may be found on our company website at www.webrsg.com/about.
Consulting Services Agreement between City of Atwater and RSG--Exhibit “B” Page 1 of 1
EXHIBIT B
FEE SCHEDULE
Our services for this engagement would be charged on a time-and-materials basis, with a not to exceed amount of $15,000 to undertake the tasks outlined in the Scope of Services. RSG proposes the following rate schedule for these services:
RSG does not charge clients for mileage, parking, standard telephone/fax expenses, general postage or incidental copies. However, we do charge for messenger services, overnight shipping/express mail costs and teleconferencing services. We also charge for copies of reports, documents, notices, and support material in excess of five (5) copies. These costs are charged back at the actual expense plus a 10% surcharge. RSG issues monthly invoices payable upon receipt, unless otherwise agreed upon in advance. Invoices identify tasks completed to date, hours expended and the hourly rate. However, we are open to discussion and negotiation over billing options, including a monthly retainer or other fee arrangement.
CITY COUNCIL OF THE
CITY OF ATWATER
RESOLUTION NO. 2951-17
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATWATER APPROVING BUDGET AMENDMENT NO. 5 AMENDING 2016-17 FISCAL YEAR BUDGET REGARDING 2016/17 AFFORDABLE HOUSING CONSULTING SERVICES
WHEREAS, the City Council of the City of Atwater adopted Resolution No. 2941-17 adopting the 2016-17 Fiscal Year Budget on June 13, 2016; and
WHEREAS, from time to time, and in order to operate effectively, it is necessary to amend said budget. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Atwater does hereby approve Budget Amendment No. 5 to the 2016-17 Fiscal Year Budget as follows: SECTION 1: Establishing budget in Low and Moderate Income Housing Asset Fund, Professional Services expense for Fiscal Year 2016-17.
BE IT FURTHER RESOLVED that a copy of this resolution appends to the original budget document that is available in the Finance Department and the City Clerk’s office. The foregoing resolution is hereby adopted this 24th day of April, 2017. AYES: NOES: ABSENT: APPROVED: _____________________________ JAMES E. PRICE, MAYOR ATTEST: ______________________________ DON HYLER III, CITY CLERK
April 12, 2017 Honorable Mayor and Members City Council Meeting of the Atwater City Council of April 24, 2017
AWARDING A COOPERATIVE PURCHASE FOR THREE (3) NEW 2017 UTILITY TRUCKS
RECOMMENDATION: It is recommended that the City Council consider: 1. Awarding a cooperative purchase, in a form approved by the City Attorney, to
Razzari Ford, 1234 Auto Center Drive, Merced, California, 95341 for the purchase of three (3) new 2017 utility trucks in an amount not to exceed $90,935.50; and
2. Authorizing and directing the City Manager to execute the purchase agreement on behalf of the City.
BACKGROUND: The City of Atwater Public Works Department is in need of replacing three (3) utility vehicles for the following divisions: Equipment Maintenance, Water, and Sewer respectively. One vehicle will replace a 1990 Chevrolet truck that has 169,326 miles. The second vehicle will replace a 1997 Chevrolet truck with 111,233 miles. The third vehicle will replace a 2002 Chevrolet truck with 213,948 miles. All three current vehicles are operating beyond the manufacturer’s warranty period, with high-mileage and excess maintenance and repair costs. ANALYSIS: Razzari Ford of Merced was the successful bidder in the Hilmar Unified School District formal bid process for a 2017 F-250 truck with utility bed with lumber rack. Staff was able to get confirmation from the dealer approving the same vehicle and price EXHIBIT “A”. In accordance with the City of Atwater Purchasing System Manual, Section 9, Procurement Methods, “Cooperative Purchases”. The City may participate in purchases and contracts established by other political jurisdictions. This allows the City the ability to piggy back on the Hilmar School Districts bid process. FISCAL IMPACT: Sufficient funding for this purchase is contained in the Capital Improvement Plan for FY 2016/17 Sewer Fund, Machinery & Equipment, Account No. 6010-5051-6021, Water Fund, Machinery & Equipment, Account No. 6000-7010-6021, and Internal Services Fund - Equipment Maintenance, Machinery & Equipment Fund No. 7000-9091-6021.
Agenda Report – Purchase of Three (3) New Utility Trucks Page 2
CONCLUSION: This staff report is submitted for City Council consideration and possible action.
/s/ Brian Shaw Brian Shaw Water Division Manager/Chief Operator
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April 12, 2017 Honorable Mayor and Members City Council Meeting of the Atwater City Council of April 24, 2017
APPROVING MEMORANDUM OF UNDERSTANDING FORMING THE MERCED IRRIGATION-URBAN GROUNDWATER SUSTAINABILITY AGENCY
RECOMMENDATION: It is recommended that the City Council consider: 1. Approving a Memorandum of Understanding forming the Merced Irrigation-Urban
Groundwater Sustainability Agency;
2. Authorizing and directing the Mayor to execute the Memorandum of Understanding, in a form approved by the City Attorney, on behalf of the City; and
3. Setting a public hearing for May 8, 2017 to provide the public an opportunity to comment on the Memorandum of Understanding prior to submittal to the Department of Water Resources.
BACKGROUND: The Sustainable Groundwater Management Act (SGMA) was passed in September of 2014 and became law on January 1, 2015. SGMA requires all high and medium priority groundwater basins to be managed by one or more groundwater sustainability agencies (GSA). These GSA(s) will have the authority, and obligation, to develop one or more groundwater sustainability plans (GSP) that develops solutions for the long-term sustainable management of local groundwater resources. The GSP(s) needs to be adopted by either January 31, 2020 or January 31, 2022, depending on whether or not the particular subbasin is in a condition of critical overdraft as further discussed below. Each groundwater subbasin must have all of its geographic area covered by one or more GSA(s) by June 30, 2017. The groundwater basin underlying the City of Atwater is:
Merced Groundwater Subbasin – Critically overdrafted basin (GSP by due January 31, 2020)
The proposed action relates to the creation of MIUGSA, and along with other GSA(s) to sustainably manage the Merced Groundwater Subbasin.
ANALYSIS: The City has been working with various agencies during the last two years to develop the MIUGSA. The Merced Groundwater Subbasin is expected to be managed by three GSAs, namely a Merced County GSA, Turner Island GSA, and the proposed MIUGSA. Collectively, the goal is to develop a single GSP to coordinate the management of groundwater resources for the basin as a whole. The signatory agencies to the three GSAs have committed to develop a single GSP for the entire basin. The public agencies to be included in the MIUGSA are: City of Merced City of Atwater City of Livingston Winton Water and Sanitary District Planada Community Services District Le Grand Community Services District Merced Irrigation District The boundary of the MIUGSA is generally the footprint of MID boundary. There are a gross 158,000 acres within MID that would lie within the proposed boundaries of proposed MIUGSA. This area lies south of the Merced River and generally north of the Chowchilla River. The process to achieve the MIUGSA is:
Each Agency authorizes execution of the MOU
Each Agency publishes a notice of a public hearing per SGMA requirements
Each Agency holds a public hearing per SGMA requirements SGMA requires each agency to hold a public hearing within 15 days of approval of the Memorandum of Understanding. The purpose of the public hearing is to provide the public an opportunity to comment on the Memorandum of Understanding and the City’s intent to form a GSA prior to submittal of its intent to the Department of Water Resources (EXHIBIT “A”). MID would compile all the information including all required documentation per SGMA to file for a single GSA e.g. the MIUGSA, anticipated around the end of May 2017. Staff recommends the City Council authorize the Mayor to execute the final version of the MOU for submittal to the DWR for consideration and approval. FISCAL IMPACT: There is no fiscal impact relating to the formation of the Merced Irrigation Groundwater Sustainability Agency. The City will ultimately have cost sharing obligations as the GSA
proceeds in developing solutions for the long-term sustainable management of local groundwater resources. CONCLUSION: This staff report is submitted for City Council consideration and possible action.
/s/ Brian Shaw Brian Shaw Water Division Manager/Chief Operator
EXHIBIT “A”
LEGAL GUIDANCE TO FORM A GSA
TO FORM A GROUNDWATER SUSTAINABILITY AGENCY (“GSA”) UNDER THE SUSTAINABLE GROUNDWATER MANAGEMENT ACT (“SGMA”), AN AGENCY MUST: 1. Publish Notice Pursuant to Gov. Code section 6066 Notice requires publication by the agency in a newspaper of regular circulation at least once a week for two consecutive weeks. 2. Hold a Public Hearing After notice is published for two weeks, the agency must hold a public hearing in the county or counties overlying the basin of which the agency wishes to become the GSA. 3. Inform the Department of Water Resources (“DWR”) of Intent to Form a GSA After publication of its notice and after holding a public hearing, the agency must inform DWR of its election to form a GSA and to undertake sustainable groundwater management. DWR must be informed of this intent within thirty (30) days of the agency’s election to form a GSA. Notification to DWR shall include:
o The service area boundaries, the basin the agency is managing, and the other GSA’s (if any) operating within the basin;
o A copy of the Resolution forming the new agency/GSA; o A copy of any new bylaws, ordinances, or new authorities adopted by the agency in
electing to form a GSA; o A list of all interested parties pursuant to Water Code section 10723.2 and an
explanation of how their interests will be considered in the development and operation of the GSA and in the development and implementation of the agency’s sustainability plan. Section 10723.2 provides: the GSA “shall consider the interests of all beneficial users and users groundwater, as well as those responsible for implementing Groundwater Sustainability Plans. These interests include, but are not limited to, all of the following:
Holders of overlying groundwater rights, including agricultural users and domestic well owners;
Municipal well operators; Public water systems; Local land use planning agencies; Environmental users of groundwater; Surface water users, if there is a hydrologic connection between
surface and groundwater bodies; The federal government, including (but not limited to) the military
managers of federal lands; California Native American Tribes;
2
Disadvantaged communities, including (but not limited to) those served by private domestic wells or small community water systems;
Entities listed in section 10927 that are monitoring and reporting groundwater elevations in all or part of a groundwater basin managed by the GSA.
o A GIS shape file showing the service area boundaries and the basin the GSA has elected to manage.
4. DWR to Post Notice to the DWR Website Within fifteen (15) days of receipt, DWR will post the GSA Notice to its website. 5. GSA Presumed Exclusive GSA Within the Area of the Basin Ninety (90) days following the posting of the GSA Notice by DWR, the GSA shall be presumed the exclusive GSA within the area of the basin as described in the GSA Notice, provided that no other Notice was submitted for the same or overlapping area.
MEMORANDUM OF UNDERSTANDING
FORMING
THE MERCED IRRIGATION-URBAN GROUNDWATER SUSTAINABILITY AGENCY
THIS MEMORANDUM OF UNDERSTANDING (“MOU”) is made and entered into on
_______________________, by and between the MERCED IRRIGATION DISTRICT, an irrigation district
(“MID” herein), CITY OF MERCED, a municipal corporation ("Merced" herein); CITY OF ATWATER, a
municipal corporation ("Atwater" herein); CITY OF LIVINGSTON, a municipal corporation ("Livingston"
herein); LE GRAND COMMUNITY SERVICES DISTRICT, a community services district, (“LGCSD” herein);
PLANADA COMMUNITY SERVICES DISTRICT, a community services district (“PCSD” herein); and
WINTON WATER AND SANITARY DISTRICT, a sanitary district, (“WWSD” herein), each a “Party” and
collectively the “Parties.”
WHEREAS, on September 16, 2014, Governor Jerry Brown signed into law Senate Bills 1168 and 1319
and Assembly Bill 1739, known collectively as the Sustainable Groundwater Management Act (“SGMA”);
and
WHEREAS, the purpose of SGMA is to create a comprehensive management system in the State of
California by creating structure to manage groundwater at the local level, while providing authority to
the State to oversee and regulate, if necessary, the local groundwater management system; and
WHEREAS, Parties overlie a portion of the Merced Subbasin (Basin Number 5-22.04, DWR Bulletin 118)
within the San Joaquin Valley Basin, a DWR-designated high-priority and critically overdrafted basin; and
WHEREAS, SGMA empowers local agencies to adopt Groundwater Sustainability Plans (“GSP”) that are
tailored to the resources and needs of their communities to provide for sustainable groundwater
management providing a buffer against drought and contributing to reliable water supply for the future;
and
WHEREAS, Water Code Section 10723.6 authorizes a combination of local agencies overlying a
groundwater basin to elect to become a Groundwater Sustainability Agency (“GSA”) by using a
memorandum of agreement or other legal agreement; and
WHEREAS, Parties are each qualified to become a GSA under SGMA as they are all local agencies with
water supply and/or water management responsibilities, being public water conveyors, within the Basin;
and
WHEREAS, in 2016, Parties entered into an agreement entitled Memorandum of Understanding Setting
Forth Certain Items of Agreement Among Agencies within the Merced Groundwater Subbasin Following
the Sustainable Groundwater Management Act, to begin a consensus-seeking discussion regarding GSA
formation and SGMA compliance; and
WHEREAS, the Parties desire through this Agreement to establish a multi-agency Groundwater
Sustainability Agency (“GSA”) for the Merced Subbasin to be advised and coordinated by a committee of
their representatives, but with GSA actions subject to approval by each of the Parties.
WHEREAS, the Parties intend to work collaboratively with other interested agencies to develop and
implement a Merced Subbasin Groundwater Sustainability Plan to sustainably manage the Basin
pursuant to SGMA, including funding under SGMA, and collection of GSP fees.
NOW, THEREFORE, incorporating the above recitals herein, it is mutually understood and agreed as
follows:
1. DEFINITIONS
1.1 “Agreement” shall mean this Agreement.
1.2 “Basin” or “Merced Subbasin” shall mean the Merced Subbasin (Basin Number 5-22.04, DWR Bulletin 118) of the San Joaquin Valley Basin.
1.3 “Merced Irrigation-Urban Groundwater Sustainability Agency” or “MIUGSA” or “this GSA” shall mean the multi-agency Groundwater Sustainability Agency formed pursuant to this Agreement.
1.4 “Merced Subbasin Groundwater Sustainability Plan” or “GSP” shall mean the Groundwater Sustainability Plan that the Parties intend, through this GSA, to develop, adopt and implement under this Agreement for the Merced Subbasin in coordination with other GSA’s whose service areas overlie the Merced Subbasin.
1.5 PURPOSE of AGREEMENT. The purpose of this Agreement is to provide the principles and terms under which the parties will cooperate in the establishment and functioning of the multi-agency Merced Irrigation-Urban Groundwater Sustainability Agency that will allow compliance with
SGMA and applicable State law(s). It is each Party’s intent, goal and objective to maintain complete
control and autonomy over the surface water supplies, water facilities, water operations,
groundwater supplies and assets to which each Party and each Party’s constituents are currently
legally entitled. This Agreement does not represent any contribution or commitment to share or
otherwise contribute that Party’s water supply assets as part of the development or
implementation of a GSP without that Party’s consent.
2. MERCED IRRIGATION-URBAN GROUNDWATER SUSTAINABILITY AGENCY. The Parties hereby establish and become members of the Merced Irrigation-Urban Groundwater Sustainability Agency to manage the portion of the Basin as set forth in Exhibit A hereto.
3. ADDITIONAL AGENCIES. Additional agencies with service area boundaries outside the jurisdiction of the Parties may join and become a Party to this Agreement and incorporate their service area boundaries or portions thereof into MIUGSA upon the mutual consent of all Parties and execution of this Agreement by the new Party’s legislative body, and in compliance with SGMA. Upon the execution of this Agreement by additional Parties, Exhibit A shall be accordingly amended to reflect the new jurisdictional boundaries of the MIUGSA.
4. POWERS
4.1 In addition to any other action, power or authorities available to implement SGMA, including the development, adoption and implementation of a GSP, the MIUGSA may perform the following functions:
(a) Adopt standards for measuring and reporting water use.
(b) Adopt rules, regulations, policies and procedures to govern the adoption and implementation of the GSP, as authorized by SGMA including funding of the GSA, and the collection of fees or charges as may be applicable.
(c) Develop and implement conservation best management practices.
(d) Develop and implement metering, monitoring and reporting related to groundwater pumping.
(e) Hire consultants as determined necessary or appropriate by the Parties
(f) Prepare a budget.
5. DECISION MAKING PROCESS
5.1 With the exceptions noted herein, it is the goal of the Parties that all actions undertaken by the MIUGSA are done by unanimous consent of the Parties; however, if unanimous consent is not possible, a majority vote of the Parties is required. The Merced Irrigation District and each of the Cities shall be entitled to one (1) vote, and the community
service districts shall collectively be entitled to one (1) vote. All public meetings shall
be conducted in accordance with the most current version of “Rosenberg’s Rules
of Order”.
5.2 In the event of an impasse or disagreement, the Parties shall use their best efforts to find a mutually agreeable result. To this effect, the Parties shall consult and negotiate with each other in good faith in an attempt to reach a solution that is mutually satisfactory. If the Parties do not reach a solution, then the matter shall be submitted to non-binding arbitration or mediation within a reasonable period of time.
6. ROLES AND RESPONSIBILITIES OF THE PARTIES
6.1 The Parties will work jointly to fulfill the Purpose of this Agreement, SGMA, and the development and implementation of a GSP within the boundaries of the MIUGSA.
6.2 The Parties will meet regularly to discuss SGMA, GSP development and implementation activities, assignments, and ongoing work progress. Each party agrees to designate an individual to serve as the central point of contact on all matters related to this Agreement.
6.3 The Parties may form committees as necessary from time to time discuss issues that impact the MIUGSA.
6.4 The Parties will form a Technical Committee to assist in the development, and then evaluate and measure implementation of the Merced Subbasin Groundwater
Sustainability Plan. The Parties designate MID to act as the primary agent for purposes of developing technical information, as well as the point of contact and designated representative for MIUGSA for coordination with GSAs within the Merced Subbasin and adjacent basins.
6.5 Except for the MID, each Party of the MIUGSA is responsible for implementation of the GSP in all areas of the MIUGSA that are within their respective jurisdictional boundaries. MID is responsible for implementing the GSP in areas of the MIUGSA within MID’s jurisdictional boundaries and outside the jurisdiction of all other Parties to the MIUGSA. As other Parties’ jurisdictional boundaries expand in the future, it is anticipated that MID’s area of responsibility may decrease.
6.6 Following implementation of the Merced Subbasin Groundwater Sustainability Plan, the Parties designate MID to complete necessary documentation, analyses and reporting for submission to the DWR and SWRCB on behalf of the MIUGSA as needed.
6.7 A Party will promptly take action on any item where approval, adoption or implementation by a Party is required.
7. FUNDING. Parties agree to share proportionally in the costs of the MIUGSA according to participation percentages. The participation percentages shall be allocated based on each Party’s proportionate share of the volume of groundwater pumped from the Merced Subbasin excluding resident recharged water under a Party’s existing surface water rights or acquired under contract, as set forth in Exhibit B. The participation may be evaluated by the Parties from time to time to order consider new information. Any revised participation percentages approved by the Parties shall be dated and attached as Exhibit B to this Agreement and effective upon the date approved by all Parties, without any further amendment of this Agreement being required.
8. TERM. This Agreement shall remain in full force and effect until amended, rescinded, superseded or terminated by the mutual written consent of the Parties and as allowed by State law. Any Party may terminate membership and withdraw from the MIUGSA upon thirty (60) days written notice of termination to the MIUGSA. Whenever a Party withdraws from the MIUGSA, it is the intent of the Parties and of the MIUGSA that the withdrawal shall remove the area within the Party’s water service area from further management by the MIUGSA, provided that the withdrawal shall be in accordance with the requirements of SGMA and shall leave no area within the Basin unmanaged.
Comment [S1]: ??
9. 9.1 . Effect of Withdrawal. A Member may unilaterally withdraw from this Agreement without causing or requiring termination of this Agreement, effective upon sixty (60) days written notice to the remaining Members. Upon withdrawal, a Member agrees that it has a continuing obligation to comply with the Act and shall, if prior to June 30, 2017, and prior to the MIU GSA becoming an exclusive GSA, notify DWR that it shall act as its own GSA or join an alternate GSA that has entered into or will enter into a Coordination Agreement with the Agency in order to avoid an adverse effect upon the continuing Members. If after July 1, 2017, that withdrawing Member shall remain subject to the terms of the GSP that is prepared by the Agency so as to not put the Merced Groundwater Subbasin in jeopardy, unless a mutually agreed upon resolution is reached between the MIU GSA, DWR, and the withdrawing Member. This obligation shall survive withdrawal from this Agreement, is for the express benefit of the remaining Members, and is subject to the indemnification provisions of Section 12 of this Agreement. A withdrawing Member shall in all events remain liable for its proportionate share of (i) the amount of any fiscal year budget approved prior to the date the withdrawing Member provides its notice of withdrawal; and (ii) any call for funds or assessment levied by the Authority prior to the date the withdrawing Member provides its notice of withdrawal.
10. AMENDMENT. This Agreement and exhibits hereto may only be amended by a subsequent writing, approved and signed by all Parties.
11. INDEMNIFICATION. No Party, nor any officer or employee of a Party, shall be responsible
for any damage or liability occurring by reason of anything done or omitted to be done by
another Party under or in connection with this Agreement. Each Party agrees that it shall indemnify each other Party from the costs losses, damages, claims or liabilities arising from such Party’s performance or non-performance of its obligations under this Agreement.
12. ASSIGNMENT. Except as otherwise provided herein, the rights and duties of the Parties may not be assigned without the written consent of the other Parties. Any attempt to assign or delegate such rights or duties in contravention of this Agreement shall be null and void. Any approved assignment or delegation shall be consistent with the terms of any contracts, resolutions, indemnities and other obligations of the Parties then in effect. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of the Parties.
13. COUNTERPARTS. This Agreement may be executed by the Parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California.
15. SEVERABILITY. If one or more clauses, sentences, paragraphs or provisions of this Agreement shall be held to be unlawful, invalid or unenforceable, it is hereby agreed by the Parties that the remainder of the Agreement shall not be affected thereby.
16. SIGNATURE AUTHORIZATION. Each Party represents that the representative executing this Agreement on its behalf has been duly authorized to execute this Agreement on behalf of the Party.
Any values shown in this exhibit are intended solely to proportion cost allocation to the MOU members
as discussed in article 8. The management of groundwater and related allocations shall be subject to
the approved Groundwater Sustainability Plan (GSP) adopted by the MOU members.
The distribution of funds is based on the following principles:
1. Natural Yield: The amount of groundwater that can be sustainably extracted, absent surface
water deliveries into the basin. Natural unimpaired flows are assumed in creeks and rivers
(Merced River and San Joaquin River)
2. The first groundwater pumped by any agency, in any given year, is assumed to be from the
natural yield, regardless of recharge efforts.
3. Each agency will contribute a proportionate share of funds based on the groundwater extracted
minus recharge, but no less than its share of the natural yield.
4. An agency may contribute to funding a proportion less than the natural yield, if its annual
groundwater pumping is less than the natural yield.
5. Funding contributions will be adjusted annually based on natural yield, and on groundwater
pumping and recharge by each agency.
Example:
Assume Natural Yield = 0.5 Acre-Foot (AF)/ Acre
Agency Agency Area Natural Yield
Actual Pumping
AF to be Chg'd
% Cost Contribution
Acres % Acres AF AF AF
MID 130,000 85% 65,000 90000 65000* 61%
Merced 14,925 10% 7,462 24000 24000 23%
Atwater 3,901 3% 1,951 7000 7000 7%
Livingston 2,378 2% 1,189 7000 7000 7%
CSDs 2,000 1% 1,000 3400 3400 3%
Total 153,204 131,400 106,400
* MID charges more than 120,000 AF annually and pumps on Average 90,000 AF. MID still contributes
full proportion of natural yield.
MEMORANDUM OF UNDERSTANDING
FORMING
THE MERCED IRRIGATION-URBAN GROUNDWATER SUSTAINABILITY AGENCY
THIS MEMORANDUM OF UNDERSTANDING (“MOU”) is made and entered into on
_______________________, by and between the MERCED IRRIGATION DISTRICT, an irrigation district
(“MID” herein), CITY OF MERCED, a municipal corporation ("Merced" herein); CITY OF ATWATER, a
municipal corporation ("Atwater" herein); CITY OF LIVINGSTON, a municipal corporation ("Livingston"
herein); LE GRAND COMMUNITY SERVICES DISTRICT, a community services district, (“LGCSD” herein);
PLANADA COMMUNITY SERVICES DISTRICT, a community services district (“PCSD” herein); and
WINTON WATER AND SANITARY DISTRICT, a sanitary district, (“WWSD” herein), each a “Party” and
collectively the “Parties.”
WHEREAS, on September 16, 2014, Governor Jerry Brown signed into law Senate Bills 1168 and 1319
and Assembly Bill 1739, known collectively as the Sustainable Groundwater Management Act (“SGMA”);
and
WHEREAS, the purpose of SGMA is to create a comprehensive management system in the State of
California by creating structure to manage groundwater at the local level, while providing authority to
the State to oversee and regulate, if necessary, the local groundwater management system; and
WHEREAS, Parties overlie a portion of the Merced Subbasin (Basin Number 5-22.04, DWR Bulletin 118)
within the San Joaquin Valley Basin, a DWR-designated high-priority and critically overdrafted basin; and
WHEREAS, SGMA empowers local agencies to adopt Groundwater Sustainability Plans (“GSP”) that are
tailored to the resources and needs of their communities to provide for sustainable groundwater
management providing a buffer against drought and contributing to reliable water supply for the future;
and
WHEREAS, Water Code Section 10723.6 authorizes a combination of local agencies overlying a
groundwater basin to elect to become a Groundwater Sustainability Agency (“GSA”) by using a
memorandum of agreement or other legal agreement; and
WHEREAS, Parties are each qualified to become a GSA under SGMA as they are all local agencies with
water supply and/or water management responsibilities, being public water conveyors, within the Basin;
and
WHEREAS, in 2016, Parties entered into an agreement entitled Memorandum of Understanding Setting
Forth Certain Items of Agreement Among Agencies within the Merced Groundwater Subbasin Following
the Sustainable Groundwater Management Act, to begin a consensus-seeking discussion regarding GSA
formation and SGMA compliance; and
WHEREAS, the Parties desire through this Agreement to establish a multi-agency Groundwater
Sustainability Agency (“GSA”) for the Merced Subbasin to be advised and coordinated by a committee of
their representatives, but with GSA actions subject to approval by each of the Parties.
WHEREAS, the Parties intend to work collaboratively with other interested agencies to develop and
implement a Merced Subbasin Groundwater Sustainability Plan to sustainably manage the Basin
pursuant to SGMA, including funding under SGMA, and collection of GSP fees.
NOW, THEREFORE, incorporating the above recitals herein, it is mutually understood and agreed as
follows:
1. DEFINITIONS
1.1 “Agreement” shall mean this Agreement.
1.2 “Basin” or “Merced Subbasin” shall mean the Merced Subbasin (Basin Number 5-22.04, DWR Bulletin 118) of the San Joaquin Valley Basin.
1.3 “Merced Irrigation-Urban Groundwater Sustainability Agency” or “MIUGSA” or “this GSA” shall mean the multi-agency Groundwater Sustainability Agency formed pursuant to this Agreement.
1.4 “Merced Subbasin Groundwater Sustainability Plan” or “GSP” shall mean the Groundwater Sustainability Plan that the Parties intend, through this GSA, to develop, adopt and implement under this Agreement for the Merced Subbasin in coordination with other GSA’s whose service areas overlie the Merced Subbasin.
1.5 PURPOSE of AGREEMENT. The purpose of this Agreement is to provide the principles and terms under which the parties will cooperate in the establishment and functioning of the multi-agency Merced Irrigation-Urban Groundwater Sustainability Agency that will allow compliance with
SGMA and applicable State law(s). It is each Party’s intent, goal and objective to maintain complete
control and autonomy over the surface water supplies, water facilities, water operations,
groundwater supplies and assets to which each Party and each Party’s constituents are currently
legally entitled. This Agreement does not represent any contribution or commitment to share or
otherwise contribute that Party’s water supply assets as part of the development or
implementation of a GSP without that Party’s consent.
2. MERCED IRRIGATION-URBAN GROUNDWATER SUSTAINABILITY AGENCY. The Parties hereby establish and become members of the Merced Irrigation-Urban Groundwater Sustainability Agency to manage the portion of the Basin as set forth in Exhibit A hereto.
3. ADDITIONAL AGENCIES. Additional agencies with service area boundaries outside the jurisdiction of the Parties may join and become a Party to this Agreement and incorporate their service area boundaries or portions thereof into MIUGSA upon the mutual consent of all Parties and execution of this Agreement by the new Party’s legislative body, and in compliance with SGMA. Upon the execution of this Agreement by additional Parties, Exhibit A shall be accordingly amended to reflect the new jurisdictional boundaries of the MIUGSA.
4. POWERS
4.1 In addition to any other action, power or authorities available to implement SGMA, including the development, adoption and implementation of a GSP, the MIUGSA may perform the following functions:
(a) Adopt standards for measuring and reporting water use.
(b) Adopt rules, regulations, policies and procedures to govern the adoption and implementation of the GSP, as authorized by SGMA including funding of the GSA, and the collection of fees or charges as may be applicable.
(c) Develop and implement conservation best management practices.
(d) Develop and implement metering, monitoring and reporting related to groundwater pumping.
(e) Hire consultants as determined necessary or appropriate by the Parties
(f) Prepare a budget.
5. DECISION MAKING PROCESS
5.1 With the exceptions noted herein, it is the goal of the Parties that all actions undertaken by the MIUGSA are done by unanimous consent of the Parties; however, if unanimous consent is not possible, a majority vote of the Parties is required. The Merced Irrigation District and each of the Cities shall be entitled to one (1) vote, and the community
service districts shall collectively be entitled to one (1) vote. All public meetings shall
be conducted in accordance with the most current version of “Rosenberg’s Rules
of Order”.
5.2 In the event of an impasse or disagreement, the Parties shall use their best efforts to find a mutually agreeable result. To this effect, the Parties shall consult and negotiate with each other in good faith in an attempt to reach a solution that is mutually satisfactory. If the Parties do not reach a solution, then the matter shall be submitted to non-binding arbitration or mediation within a reasonable period of time.
6. ROLES AND RESPONSIBILITIES OF THE PARTIES
6.1 The Parties will work jointly to fulfill the Purpose of this Agreement, SGMA, and the development and implementation of a GSP within the boundaries of the MIUGSA.
6.2 The Parties will meet regularly to discuss SGMA, GSP development and implementation activities, assignments, and ongoing work progress. Each party agrees to designate an individual to serve as the central point of contact on all matters related to this Agreement.
6.3 The Parties may form committees as necessary from time to time discuss issues that impact the MIUGSA.
6.4 The Parties will form a Technical Committee to assist in the development, and then evaluate and measure implementation of the Merced Subbasin Groundwater
Sustainability Plan. The Parties designate MID to act as the primary agent for purposes of developing technical information, as well as the point of contact and designated representative for MIUGSA for coordination with GSAs within the Merced Subbasin and adjacent basins.
6.5 Except for the MID, each Party of the MIUGSA is responsible for implementation of the GSP in all areas of the MIUGSA that are within their respective jurisdictional boundaries. MID is responsible for implementing the GSP in areas of the MIUGSA within MID’s jurisdictional boundaries and outside the jurisdiction of all other Parties to the MIUGSA. As other Parties’ jurisdictional boundaries expand in the future, it is anticipated that MID’s area of responsibility may decrease.
6.6 Following implementation of the Merced Subbasin Groundwater Sustainability Plan, the Parties designate MID to complete necessary documentation, analyses and reporting for submission to the DWR and SWRCB on behalf of the MIUGSA as needed.
6.7 A Party will promptly take action on any item where approval, adoption or implementation by a Party is required.
7. FUNDING. Parties agree to share proportionally in the costs of the MIUGSA according to participation percentages. The participation percentages shall be allocated based on each Party’s proportionate share of the volume of groundwater pumped from the Merced Subbasin excluding resident recharged water under a Party’s existing surface water rights or acquired under contract, as set forth in Exhibit B. The participation may be evaluated by the Parties from time to time to order consider new information. Any revised participation percentages approved by the Parties shall be dated and attached as Exhibit B to this Agreement and effective upon the date approved by all Parties, without any further amendment of this Agreement being required.
8. TERM. This Agreement shall remain in full force and effect until amended, rescinded, superseded or terminated by the mutual written consent of the Parties and as allowed by State law. Any Party may terminate membership and withdraw from the MIUGSA upon thirty (60) days written notice of termination to the MIUGSA. Whenever a Party withdraws from the MIUGSA, it is the intent of the Parties and of the MIUGSA that the withdrawal shall remove the area within the Party’s water service area from further management by the MIUGSA, provided that the withdrawal shall be in accordance with the requirements of SGMA and shall leave no area within the Basin unmanaged.
Comment [S1]: ??
9. 9.1 . Effect of Withdrawal. A Member may unilaterally withdraw from this Agreement without causing or requiring termination of this Agreement, effective upon sixty (60) days written notice to the remaining Members. Upon withdrawal, a Member agrees that it has a continuing obligation to comply with the Act and shall, if prior to June 30, 2017, and prior to the MIU GSA becoming an exclusive GSA, notify DWR that it shall act as its own GSA or join an alternate GSA that has entered into or will enter into a Coordination Agreement with the Agency in order to avoid an adverse effect upon the continuing Members. If after July 1, 2017, that withdrawing Member shall remain subject to the terms of the GSP that is prepared by the Agency so as to not put the Merced Groundwater Subbasin in jeopardy, unless a mutually agreed upon resolution is reached between the MIU GSA, DWR, and the withdrawing Member. This obligation shall survive withdrawal from this Agreement, is for the express benefit of the remaining Members, and is subject to the indemnification provisions of Section 12 of this Agreement. A withdrawing Member shall in all events remain liable for its proportionate share of (i) the amount of any fiscal year budget approved prior to the date the withdrawing Member provides its notice of withdrawal; and (ii) any call for funds or assessment levied by the Authority prior to the date the withdrawing Member provides its notice of withdrawal.
10. AMENDMENT. This Agreement and exhibits hereto may only be amended by a subsequent writing, approved and signed by all Parties.
11. INDEMNIFICATION. No Party, nor any officer or employee of a Party, shall be responsible
for any damage or liability occurring by reason of anything done or omitted to be done by
another Party under or in connection with this Agreement. Each Party agrees that it shall indemnify each other Party from the costs losses, damages, claims or liabilities arising from such Party’s performance or non-performance of its obligations under this Agreement.
12. ASSIGNMENT. Except as otherwise provided herein, the rights and duties of the Parties may not be assigned without the written consent of the other Parties. Any attempt to assign or delegate such rights or duties in contravention of this Agreement shall be null and void. Any approved assignment or delegation shall be consistent with the terms of any contracts, resolutions, indemnities and other obligations of the Parties then in effect. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of the Parties.
13. COUNTERPARTS. This Agreement may be executed by the Parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California.
15. SEVERABILITY. If one or more clauses, sentences, paragraphs or provisions of this Agreement shall be held to be unlawful, invalid or unenforceable, it is hereby agreed by the Parties that the remainder of the Agreement shall not be affected thereby.
16. SIGNATURE AUTHORIZATION. Each Party represents that the representative executing this Agreement on its behalf has been duly authorized to execute this Agreement on behalf of the Party.
Any values shown in this exhibit are intended solely to proportion cost allocation to the MOU members
as discussed in article 8. The management of groundwater and related allocations shall be subject to
the approved Groundwater Sustainability Plan (GSP) adopted by the MOU members.
The distribution of funds is based on the following principles:
1. Natural Yield: The amount of groundwater that can be sustainably extracted, absent surface
water deliveries into the basin. Natural unimpaired flows are assumed in creeks and rivers
(Merced River and San Joaquin River)
2. The first groundwater pumped by any agency, in any given year, is assumed to be from the
natural yield, regardless of recharge efforts.
3. Each agency will contribute a proportionate share of funds based on the groundwater extracted
minus recharge, but no less than its share of the natural yield.
4. An agency may contribute to funding a proportion less than the natural yield, if its annual
groundwater pumping is less than the natural yield.
5. Funding contributions will be adjusted annually based on natural yield, and on groundwater
pumping and recharge by each agency.
Example:
Assume Natural Yield = 0.5 Acre-Foot (AF)/ Acre
Agency Agency Area Natural Yield
Actual Pumping
AF to be Chg'd
% Cost Contribution
Acres % Acres AF AF AF
MID 130,000 85% 65,000 90000 65000* 61%
Merced 14,925 10% 7,462 24000 24000 23%
Atwater 3,901 3% 1,951 7000 7000 7%
Livingston 2,378 2% 1,189 7000 7000 7%
CSDs 2,000 1% 1,000 3400 3400 3%
Total 153,204 131,400 106,400
* MID charges more than 120,000 AF annually and pumps on Average 90,000 AF. MID still contributes
full proportion of natural yield.
Page 1
Public Works Department Project/Activity Report for March 2017
STREETS & BUILDINGS DIVISION
Filled pot holes at the following locations throughout the City using 3,200 pounds of asphalt patching material:
o Several locations on First Street between Juniper Avenue and Fortuna Avenue.
o Fruitland Avenue between Virginia Street and Kansas Avenue. o Fruitland Avenue between Winton Way and Shaffer Road. o Center Street between First Street and Village Circle Drive. o Winton Way between Olive Avenue and Juniper Avenue.
Performed several repairs to and conducted routine maintenance on string line trimmers and chain saws.
Cleaned and disposed of garbage and other debris left by transients at two (2) separate locations within the City.
In a coordinated effort, worked with the City’s Code Enforcement Officer and CAL Fire Work Crews to trim the vegetation on the South side of Atwater Boulevard between Shaffer Road and Bert Crane Road. Trash clean up and weed removal will be continued in April to complete the project.
Repaired non-functioning lighted crosswalk at Brownell Avenue and Bellevue Road.
Performed traffic signal light repairs at the following locations: o Repaired broken bracket for light cluster on S/W corner of First Street and
Bellevue Road. o Replaced red light protective sleeve for light cluster on N/W corner of
Shaffer Road and Atwater Boulevard. WATER DIVISION
Replaced two (2) broken Residential Water Service Lines from the City water main to the City’s shut off valve at the following locations:
o 470 Bellevue Road o 165 East Clinton Avenue
Performed two (2) Water Service Line upgrades and installed an idler at the City’s shut off valve at the following locations:
o 2501 Olive Avenue o 2163 First Street
Page 2
Performed 356 Commercial Water Meter readings.
Replaced PLC interface module at USP Atwater Pump Room.
Performed 168 Delinquent Water Shut Offs.
Performed mechanical removal of weeds at Well Sites throughout the City.
Replaced faulty plumbing and chlorine pump at Well #15.
Completed the installation of new irrigation bubbler lines to accommodate new trees that will be planted on Broadway Avenue between Winton Way and First Street.
Repaired broken four (4) inch irrigation main line on Miyake Softball Field in Osborn Park.
Repaired a broken Blow Off Valve on Curtis Court. WASTEWATER AND STORM DIVISION
Cleared storm drain grates of leafs and other debris and utilized the Vac Con Truck to clear storm drains and storm water storage lines.
Refilled storm pump motors with oil and performed other preventative maintenance operations at all storm pump stations.
Performed mechanical weed abatement by means of mowing, weed trimming and brush trimming at various storm pond locations throughout the City.
Logged daily sewer flows at USP Atwater Sewer Lift Station, Castle Sewer Lift Station and Old Base Housing Sewer Lift Station.
Cleaned and performed preventative maintenance on various Sewer Wet Wells and Sewer Lift Stations on an as needed basis.
Performed multiple Sewer Lateral Line inspections via a camera to help determine if blockages within the line were caused by City tree roots.
Performed Sewer Main Line preventative maintenance at various “trouble spots” throughout the City.
Removed two (2) trees on Spruce Avenue due to root intrusions in to the Sewer Lateral Line.
Page 3
EQUIPMENT MAINTENANCE DIVISION
Preformed routine service/maintenance on 15 City vehicles.
Performed specialty repairs on 35 City vehicles.
Performed several different types of repairs to all four (4) mowers. PARKS DIVISION
Landscape Maintenance Districts: o Continued mowing and general maintenance of turf and landscaped areas
within each LMD on a regular basis. o Performed chemical and manual weed abatement within landscaped
areas contained in selected LMD’s.
General Park Maintenance: o Continued mowing and trimming in various park sites on an as needed
basis. o Performed irrigation repairs and general clean-up at Fireman’s Memorial
Ball Park in preparation of Atwater Youth Baseball Opening Ceremony and Annual High School Easter Baseball Tournament.
o Performed repairs to skate park perimeter fencing due to vandalism. o Repaired broken irrigation line at Powerline Park. o Removed fallen tree limbs from the Grounds at the Bloss Home Museum
and Bloss Park.
Street Side Maintenance: o Mowing, trimming and trash pick-up at various street side landscaped
areas throughout the City.
Street Tree Work o One (1) stump removal o Six (6) clearance/structural prunings o Two (2) tree removals o Five (5) limb failure removals
GRAFFITI ABATEMENT
Worked with Environmental Compliance Resources, the City’s Graffiti Abatement Contractor, to remove and paint over graffiti at various locations throughout the City, to include zero (0) separate street signs. This work was performed with 34.5 man hours during the month of March 2017. The total amount of graffiti removed during this time period was approximately 3,841 square feet.
Page 4
CITY-WIDE CLEAN UP DAY
On Saturday, March 18, 2017 from 7:00 am to 2:00 pm, volunteers from USP Atwater, Buhach Colony High School, Atwater Police Department Volunteers, Atwater Police Department Cadets and Atwater Public Works Department teamed up with 17 Employees from Republic Services (Allied Waste) to facilitate a day in where City Residents, at no charge, had the ability to get rid of any unwanted debris or household items such as electronic waste, old tires, appliances and other large items that normally would have to be taken to the County Landfill.
o Approximately 140 tons of debris was processed by Republic Services (Allied Waste).
o All Electronic Waste (E-Waste) was taken in by Unicor that is housed at USP Atwater.
o West Coast Rubber Recycling collected approximately 114 cubic yards of discarded tires.
o Three (3) forty cubic yard roll off bins were filled with metal objects and unwanted appliances.
o Blue Marble Materials collected 115 used mattresses and 80 used box springs.
o There were 41 separate curb side services for Senior Citizens and/or Disabled Residents.
WELL WATER LEVELS 2017
PUMP JAN FEB MAR APR MAY JUNE JULY AUG SEPT OCT NOV DEC
WEL
L #
SETT
ING
ST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
ALST
ATIC
RES
IDU
AL
9*
13 165 90 86
14 175 89 89
15* 175 125 125
16 230 154 155
17 240 117 119
18 295 94 96
19 305 95 87
20
21 160 110 107
msaavedra
Text Box
89
msaavedra
Text Box
90
msaavedra
Text Box
94
msaavedra
Text Box
91
msaavedra
Text Box
152
msaavedra
Text Box
114
msaavedra
Text Box
97
msaavedra
Text Box
108
April 17, 2017 Mayor and Members of the City Council Meeting Atwater City Council of April 24, 2017
PROVIDE DIRECTION TO STAFF ON POLICY ISSUES RELATED TO POSSIBLE AMENDMENTS TO EXISTING MEDICAL MARIJUANA CODES AND POTENTIAL COMMERCIAL MARIJUANA ORDINANCE
RECOMMENDATION: It is recommended that the City Council take the following actions:
Provide direction to staff on several policy issues related to possible amendments to Title 8, Chapter 8.52 Medical Marijuana, Title 17, Chapter 17.06 Definitions, and a potential Commercial Marijuana Ordinance – Title 17 Zoning, Chapter 17.75 Specific Uses.
BACKGROUND: On January 31, 2017 the Atwater City Council and Community Development & Resource Commission (CDRC) held a Joint Special Meeting regarding the topic of Commercial Marijuana. At that time staff was given direction by the Atwater City Council to prepare an ordinance which if adopted would potentially allow for commercial marijuana operations within the City of Atwater. Additionally, due to the passage of Proposition 64 in November 2016 and other changes that took effect in June 2016 with the passage of SB 837 the City’s existing Medical Marijuana Codes need some updates for consistency purposes. ANALYSIS: A Draft Ordinance which would provide for changes to Title 8, Chapter 8.52 pertaining to Medical Marijuana and amending two sections of Title 17 Zoning, Chapter 17.06 Definitions and Chapter 17.75 Specific Uses has been attached for the Council’s review. Included in the Draft Ordinance changed to existing code sections are done in a strike through where text is being deleted and in underlined where new text is being added. Also in the Draft Ordinance are several highlighted sections that are also underlined. These are sections that are associated with some policy direction that the Council can provide. They can be removed or retained depending on the specific direction. As the Council is aware any modification to the Zoning Title requires a Public Hearing and a recommendation by the CDRC followed by a Public Hearing and First Reading and then a Public Hearing and Second Reading by the City Council. Afterwards if approved the new ordinance changing or adding language would take effect 30 days following the second reading date. Although Title 8, Chapter 8.52 does not specifically require a recommendation by the CDRC the Council should consider keeping the items together as one comprehensive item. Based on where the process is should the Council wish to proceed the likely final adoption date would be near the end of June.
Agenda Report- Draft Medical Marijuana Ordinance Page 2
The Draft Ordinance was been created using several samples from cities and counties in California which allow for commercial marijuana activities. Any ordinance however should reflect the policy and vision of the local community. The Council should keep in mind that this ordinance will likely need revision in the future, as many others do, in order to keep up with changing trends or legal updates. The following is a list of Policy Topics that staff would like direction on from the Council before finalizing the Ordinance and taking the formal steps required in the approval process. The Council can also take this opportunity to cease any additional work if that is the direction as well.
Personal Cultivation Permits – the Council can adopt local codes which create the need for any private individual that seeks to cultivate marijuana on their privately controlled property for personal use to require a permit to do so. If a permit does become required the Council can also set a reasonable permit fee. Conversely the Council can also not require a personal permit. If required it would create an opportunity to allow for inspection of the facilities used for the cultivation to ensure it meets health and safety codes, primarily electrical and fire hazard concerns. As proposed all cultivation for private use must be done indoors, regardless if a personal cultivation permit is required or not. The fee should only be as high as necessary to cover the actual expense to process and perform inspections. If a fee is set too high it may push individuals to avoid obtaining them all together.
Retail Sales – at the workshop several concerns were expressed regarding “stand alone” retail or dispensary type uses. One option the Council may consider is allowing some “integrated retail sales.” For example retail sales could be allowed only if integrated with other permitted uses such as cultivation and processing – manufacturing. Under this model the retail component would be allowed but in a limited capacity and would not be its own separate business.
Fees – within the draft ordinance there would be fees associated with several activities; Regulatory Permit – the permit to allow for commercial marijuana operations, Employee Permit – requires a live scan and other background for each employee to be performed by the Police Department, Security – Alarm Permit – requires a plan to be developed and approved by the Police Chief. The Fees have not been set. They would be done by a separate resolution of the Atwater City Council that can be done concurrent with the Ordinance. The initial assessment of the fees is that it should be a flat fee plus actual expenses to ensure the applicant is paying the full cost. There are renewal procedures in the draft ordinance and therefore renewal fees should also be included in the future resolution.
Revenue – as currently proposed each business that seeks to obtain a Regulatory Permit will be required to pay a Revenue Raising Fee for the privilege to operate in the City. The fees are based upon a cost per square foot. As
Agenda Report- Draft Medical Marijuana Ordinance Page 3
proposed there are slightly different models depending on the specific type of operation. However should the City Council provide direction to allow for retail sales the fees specifically associated with that component of the business can be done on a Gross Revenue basis instead of a per square foot basis. The Draft Ordinance has language that can accommodate this should the Council wish to take this direction. The amount is 3% of Gross Revenue. Additionally, there are procedures and requirements included that would ensure for audit reports, inspection of books, as well as requirements for data collection to meet the State requirements associated with dispensary activities for Medical Marijuana.
FISCALIMPACT: None at this time. CONCLUSION: This report is submitted for City Council review and possible action. Respectfully submitted, _____________________________ Scott McBride Interim City Manager - Community Development Director City of Atwater
CITY COUNCIL OF THE
CITY OF ATWATER
ORDINANCE NO. CS ____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATWATER: (1) AMENDING TITLE 8, CHAPTER 8.52, PERTAINING TO MEDICAL MARIJUANA; (2) AMENDING THE DEFINITIONS SECTION OF TITLE 17, CHAPTER 17.06, TO ADDRESS COMMERCIAL MARIJUANA OPERATIONS IN THE CONTEXT OF CROP CULTIVATION AND INDUSTRY, INDUSTRIAL OPERATION; AND (3) AMENDING TITLE 17, CHAPTER 17.75, OF THE CITY’S DEVELOPMENT CODE TO ADD A NEW SECTION 17.75.120 PERTAINING TO THE STANDARDS FOR COMMERCIAL MARIJUANA OPERATIONS IN THE CITY
The City Council of the City of Atwater does hereby ordain: SECTION 1: FINDINGS. 1. State Law Findings.
a. On November 5, 1996, with the adoption of Proposition 215, the California
voters approved the Compassionate Use Act (“CUA”) (Health and Safety Code § 11362.5) to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where medical use is deemed appropriate and has been recommended by a physician, without fear of criminal prosecution under limited, specified circumstances.
b. On January 1, 2004, the State Legislature enacted SB 420 to clarify the
scope of the CUA and provide additional statutory guidance regarding medical marijuana use. These statutes are codified in Health and Safety Code § 11362.7 et seq. and allow cities and counties to adopt supplemental rules and regulations.
c. On October 9, 2015, almost 20 years after passage of the CUA, the Governor signed the Medical Marijuana Regulation and Safety Act (“Act”), comprised of California legislative bills AB 243, AB 266, and SB 643. The Act creates a comprehensive state licensing system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis, all subject to local control. One of the purposes of the Act is to ensure uniformity among jurisdictions that wished to allow commercial marijuana operations.
Field Code Changed
Ordinance No. CS Page 2
d. On June 27, 2016, the Governor signed SB 837, effective immediately,
changing the terms in the Act from “medical marijuana” or “marijuana” to “medical cannabis” or “cannabis”, and making other technical changes to the Act. SB 837 also adopted regulations relating to the use and diversion of water in connection with the cultivation of cannabis.
e. On November 8, 2016, the people of the State of California passed
Proposition 64 (also known as the Control, Regulate, and Tax Adult Use of Marijuana Act (“AUMA”)), legalizing the possession, use, and cultivation of marijuana by adults, subject to certain limitations. The AUMA permits local governments to regulate the cultivation of marijuana or cannabis within its jurisdiction, subject to state law limitations.
2. City of Atwater Marijuana Regulatory History.
a. In 2016, the City adopted Title 8, Chapter 8.52, of the Atwater Municipal
Code pertaining to Medical Marijuana (Ordinance CS 969). The CS 969 placed a complete ban on marijuana cultivation and dispensaries in the City based in part upon the fact that there were no State regulatory controls. The City was concerned that without adequate uniform State wide regulatory controls in place, marijuana cultivation and dispensaries would become a nuisance.
b. At the time the City adopted the marijuana cultivation ban, the issue of
commercial marijuana operations, such as manufacturing, testing and distribution, were not considered an area of concern in need of regulation. Now, with the adoption of the Act, commercial marijuana operations are imminent.
c. To avoid possible ambiguity created through the development of laws
relating to commercial marijuana operations, it is necessary to amend Chapter 17.06 of the City’s Development Code to incorporate a definition for Crop Cultivation and amend the definition for Industry, Industry Operation.
d. In removing the commercial cultivation ban for the reasons set forth below
and in light of commercial marijuana operations being imminent, there is a need to impose regulatory requirements on commercial marijuana operations to protect the public health, safety and welfare.
3. Failure to Have Regulations: Health and Safety Consequences.
a. As noted, on October 9, 2015, the State adopted the Act, which took effect
January 1, 2016. The Act mandated a comprehensive state licensure and regulatory framework for cultivation, manufacturing, distribution, transportation, testing, and dispensing of medical marijuana on a commercial basis, but implementing regulations have yet been written and state licenses may not be available until as late as 2018.
b. Since the passage of AUMA, there have been inquiries from individuals
and entities, both from within and outside the City of Atwater, seeking to start a
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commercial marijuana operation in the City. The qualifications, expertise, and backgrounds of most of these individuals and entities are unknown. In the absence of a formal regulatory framework, there are potential serious adverse consequences to the community. There are numerous well publicized studies and reports, as well as numerous documented incidents in Merced County and throughout the State, which show that unregulated marijuana operations have a significant adverse effect on the community.
c. The numerous health, safety, and welfare concerns associated with
unregulated marijuana operations include, among others, home drug labs, offensive odors, trespassing, theft, violent encounters between growers and persons attempting to steal plants, fire hazards, problems associated with mold, fungus, and pests, and environmental contamination. These concerns have been exemplified throughout Merced County and the State as evidenced by numerous area agency police reports and news articles and stories.
d. The City finds that in the absence of a formal regulatory framework the
adverse impacts frequently associated with commercial marijuana operations will occur, resulting in an unregulated and potentially significant negative impact upon the environment and upon the public health, safety, and welfare of the community. 4. Inability to Open: Health and Safety Consequences.
a. There is a large black market run by criminal organizations in the Atwater
area, and State wide, where medical marijuana patients have to acquire their marijuana. Every time a patient purchases marijuana from the black market they not only have no idea as to the quality and dosage of the product, they are dealing with dangerous criminals, often hardened gang members. Purchasing on the black market is directly associated with criminal activity and is harmful to the surrounding neighborhoods. Purchasing marijuana in this way is a significant health and safety risk to the patient, and the neighborhood where these transactions take place, that must be addressed now that there is a mechanism to address the problem with the Act.
b. Since the passage of AUMA, this problem has been magnified. AUMA
specifically recognizes that, prior to its passage, the adult use of marijuana could only be accessed through an illegal and unregulated market. In order for law enforcement to crackdown on the underground black market that currently benefits drug cartels and gangs, it is necessary to facilities processing a safe product. If safe facilities are not in place, users will continue to use the dangerous black market.
SECTION 2: Chapter 8.52 of the City of Atwater Municipal Code is hereby amended to read in full as follows: 8.52.010 – Legislative findings and statement of purpose. A. The City Council finds that the prohibitions regulation on of indoor and outdoor marijuana cultivation, marijuana processing, marijuana delivery, and marijuana
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dispensaries are necessary for the preservation and protection of the public health, safety, and welfare for the City and its community. The City Council's prohibition regulation of such activities is within the authority conferred upon the City Council in its Charter and state law. B. On October 9, 2015, the governor signed the "Medical Marijuana Regulation and Safety Act" ("Act") into law, which became effective on January 1, 2016. On June 27, 2016, the Governor signed SB 837, effective immediately, changing the terms in the Act from “medical marijuana” or “marijuana” to “medical cannabis” or “cannabis”, and making other technical changes to the Act. The Act becomes effective January 1, 2016 and contains new statutory provisions that:
1. Allow local governments to enact ordinances expressing their intent to prohibit the cultivation of marijuana and their intent not to administer a conditional permit program pursuant to Health and Safety Code section 11362.777 for the cultivation of marijuana (Health and Safety Code § 11362.777(c)(4));
2. Expressly provide that the Act does not supersede or limit local authority for local law enforcement activity, enforcement of local ordinances, or enforcement of local permit or licensing requirements regarding marijuana (Business and Professions Code § 19315(a));
3. Expressly provide that the Act does not limit the authority or remedies of a local government under any provision of law regarding marijuana, including but not limited to a local government's right to make and enforce within its limits all police regulations not in conflict with general laws (Business and Professions Code § 19316(c)); and
4. Require a local government that wishes to prevent marijuana delivery activity, as defined in Business and Professions Code section 19300.5(m) of the Act, from operating within the local government's boundaries to enact an ordinance affirmatively banning such delivery activity (Business and Professions Code § 19340(a)).
C. The City Council finds that this chapter: (1) expresses its intent to prohibit the indoor and outdoor cultivation of marijuana in the City and to not administer a conditional permit program pursuant to Health and Safety Code §section 11362.777 for the cultivation of marijuana in the City; (2) exercises its local authority to enact and enforce local regulations and ordinances, including those regarding the permitting, licensing, or other entitlement of the activities prohibited by this chapter; (3) exercises its police power to enact and enforce regulations for the public benefit, safety, and welfare of the City and its community; and (4) expressly prohibits the delivery of marijuana in the City. D. The City Council further finds that this Chapter is necessary to regulate the cultivation of Marijuana or Cannabis in a manner that protects the health, safety and
Comment [AB1]: Cultivation, or “outdoor cultivation”?
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welfare of the community consistent with Proposition 64, also known as the Control, Regulate, and Tax Adult Use of Marijuana Act (“AUMA”). This Chapter is not intended to interfere with a patient’s right to medical Marijuana or Cannabis, as provided for in California Health & Safety Code Section 11362.5, nor does it criminalize medical Marijuana or Cannabis possession or cultivation by specifically defined classifications of persons, pursuant to state law. This Chapter is not intended to give any person unfettered legal authority to grow Marijuana or Cannabis; it is intended to impose zoning restrictions on the personal indoor Cultivation of Marijuana or Cannabis permitted under AUMA when it is authorized by California state law for medical or other lawful purposes. E. No part of this Chapter shall be deemed to conflict with federal law as contained in the Controlled Substances Act, 21 U.S.C. §§ 800 et seq., nor to otherwise permit any activity that is prohibited under that Act or any other local, state or federal law, statute, rule or regulation. 8.52.020 – Definitions. For purposes of this chapter, the following definitions shall apply: A. “Authorized Grower” means a person twenty-one (21) years or older who is
authorized by, and in compliance with, federal or state law to Cultivate Marijuana indoors for personal or medical use.
B. “Cannabis” has the same meaning as in Section 19300.5 of the Business and Professions Code.
C. “Fully Enclosed and Secure Structure” means a fully-enclosed space within a building that complies with the California Building Code (“CBSC”), as adopted in the City of Atwater, or if exempt from the permit requirements of the CBSC, that has a complete roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments, is secure against unauthorized entry, is accessible only through one or more lockable doors, and is not visible from a public right-of-way. Walls and roofs must be constructed of solid materials that cannot be easily broken through such as two inch by four inch nominal or thicker studs overlaid with three-eighths inch or thicker plywood or the equivalent. Plastic sheeting, regardless of gauge, or similar products do not satisfy this requirement. If indoor grow lights or air filtration systems are used, they must comply with the California building, electrical, and fire codes as adopted in the City of Atwater.
D. “Immature Marijuana Plant” means a Marijuana plant, whether male or female, that has not yet flowered and which does not yet have buds that are readily observed by unaided visual examination.
E. “Indoors” means within a Fully Enclosed and Secure Structure as that structure is defined above in subsection C.
Comment [AB2]: Grammar wise this is a bit confusing. Perhaps some commas are missing?
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Comment [AB3]: The inclusion of “federal” means that nobody is currently an “authorized grower” I would amend this definition as follows: “Authorized grower means a person twenty-one (21) years or older, a qualified patient as defined in Health & Safety Code section 11362.7(f), a person with an identification card as defined in Health & Safety Code section 11362.7(c), or a primarily caregiver as defined in Health & Safety Code section 11362.7(d), who is authorized by, and in compliance with, local and state law to Cultivate Marijuana indoors for personal or medical use.
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A.F. “Marijuana" means any or all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin or separated resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin, including marijuana infused in foodstuff or any other ingestible or consumable product containing marijuana. The term "marijuana" shall also include "medical marijuana" as such phrase is used in the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the state of California or subject to the provisions of California Health and Safety Code §Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code §§Sections 11362.7 to 11362.83 (Medical Marijuana Program Act).
B.G. "Marijuana or Cannabis cultivation" means growing, planting, harvesting, drying,
curing, grading, trimming, or processing of marijuana, whether such activities take place indoors or outdoors.
C. "Marijuana processing" means any method used to prepare marijuana or its
byproducts for commercial retail and/or wholesale, including but not limited to: drying, cleaning, curing, packaging, and extraction of active ingredients to create marijuana related products and concentrates.
D.H. "Marijuana dispensary" or "marijuana dispensaries" means any business, office,
store, facility, location, retail storefront or wholesale component of any establishment, cooperative or collective that delivers (as defined in Business and Professions Code §section 19300.5(m) or any successor statute thereto) whether mobile or otherwise, dispenses, distributes, exchanges, transmits, transports, sells or provides marijuana to any person for any reason, including members of any medical marijuana cooperative or collective consistent with the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the state of California, or for the purposes set forth in California Health and Safety Code §Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code §§Sections 11362.7 to 11362.83 (Medical Marijuana Program Act).
E.I. “Mature Marijuana Plant” means a Marijuana plant, whether male or female, that has flowered and which has buds that are readily observed by unaided visual examination.
"Medical marijuana collective" or "cooperative or collective" means any group that is collectively or cooperatively cultivating and distributing marijuana for medical purposes that is organized in the manner set forth in the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the state of California or
Comment [AB4]: This places distribution and dispensing under the same definition.
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subject to the provisions of California Health and Safety Code Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana Program Act).
F.J. “Outdoor” means any location within the City of Atwater that is not within a Fully Enclosed and Secure Structure.
G.K. “Parcel” means property assigned a separate parcel number by the Merced County Assessor.
H.L. “Private Residence” means a house, apartment unit, mobile home, or other similar dwelling unit.
8.52.040 – Prohibited activities. Outdoor Mmarijuana or cannabis cultivation, (whether it occurs indoors or outdoors), marijuana processing, marijuana delivery, and marijuana dispensaries shall be prohibited activities in the City, except where the City is preempted by federal or state law from enacting a prohibition on any such activity. No use permit, variance, building permit, or any other entitlement, license, or permit, whether administrative or discretionary, shall be approved or issued for the activities of outdoor marijuana cultivation, marijuana processing, marijuana delivery, or the establishment or operation of a marijuana dispensary in the City, and no person shall otherwise establish or conduct such activities in the City, except where the City is preempted by federal or state law from enacting a prohibition on any such activity for which the use permit, variance, building permit, or any other entitlement, license, or permit is sought. 8.52.050 – Cultivation of Marijuana or Cannabis for personal use; regulations for
residential zones.
A. When authorized by state law, an authorized grower shall be allowed to Cultivate Marijuana or Cannabis only in a Private Residence in a residential zone, only indoors, and only for personal use, subject to the following regulations:
1. The Marijuana or Cannabis Cultivation area shall be located indoors within a residential structure and shall not exceed fifty square feet and not exceed ten feet in height, nor shall it come within twelve (12) inches of the ceiling or any cultivation lighting. Cultivation in a greenhouse or other legal accessory strucutrestructure on the property of the residence, but not physically part of the home, is permitted, as long as it is fully enclosed, secure, not visible from a public right-of-way and meeting all requirements in this Chapter. Additionally, all structures must meet setback, height limitations, and be constructed in accordinanceaccordance with all local requirements as well as all applicable Building Codes.
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Comment [AB5]: Prohibiting dispensaries as currently defined has prohibited distribution facilities.
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2. The use of gas products such as, but not limited to CO2, butane, methane, or any other flammable or non-flammable gas for Marijuana or Cannabis Cultivation or processing is prohibited.
3. There shall be no exterior visibility or evidence of Marijuana or Cannabis Cultivation outside the Private Residence from the public right-of-way, including but not limited to any Marijuana or Cannabis plants, equipment used in the growing and Cultivation operation, and any light emanating from Cultivation lighting.
4. The authorized grower shall reside full-time in the residence where the Marijuana or Cannabis cultivation occurs.
5. The Authorized Grower shall not participate in Marijuana or Cannabis Cultivation in any other location within the City.
6. The residence shall include fully functional and usable kitchen, bathroom, and bedroom areas for their intended use by the resident authorized grower, and the premises shall not be used primarily or exclusively for Marijuana or Cannabis Cultivation.
7. The Marijuana or Cannabis Cultivation area shall be in compliance with the current adopted edition of the California Building Code including § 1203.4 Natural Ventilation or § 402.3 Mechanical Ventilation (or equivalent), as amended from time to time.
8. The Building Official may require additional specific standards to meet the California Building Code and Fire Code, including but not limited to installation of fire suppression sprinklers.
9. The Marijuana or Cannabis Cultivation area shall not result in a nuisance or adversely affect the health, welfare, or safety of the resident or nearby residents by creating dust, glare, heat, noise, noxious gasses, odors, smoke, traffic, vibration, or other impacts, or be hazardous due to use or storage of materials, processes, products or wastes.
10. No more than six (6) Marijuana or Cannabis plants, mature or immature, are permitted for indoor personal cultivation under this Chapter.
11. Marijuana or Cannabis in excess of twenty-eight and 5/10 (28.5) grams produced by plants kept for indoor personal cultivation under this Chapter must be kept in a locked space on the grounds of the Private Residence not visible from the public right-of-way.
The City Council may want to consider the following policies which would require
an annual permit and inspection for cultivation at a private residence;
Comment [AB6]: By saying this you have prohibiting individuals involved in commercial cannabis cultivation from having a personal home grow. I believe that requiring the individual to be a full-time resident takes care of individuals only growing for personal use at one location.
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12. The authorized grower shall pay an inspection fee to the City of Atwater to provide for the cost of an annual inspection by code enforcement in order to ensure compliance with the above. Upon inspection and satisfactory compliance, the authorized grower will be issued a personal cultivation permit which will remain effective for one year from the date of issuance.
13. In order to renew the personal cultivation permit, the authorized grower shall, at least forty-five (45) days prior to the expiration of the permit, pay an the authorized personal cultivation permit renewal fee and schedule an inspection for code enforcement to conduct its annual inspection. 14. The amount of the fee shall be set by Resolution of the City Council and be supported by the estimated additional costs of enforcement and monitoring associated with the Marijuana Operation. The Regulatory Fee may be amended from time to time based upon actual costs.
B. Outdoor Cultivation of Marijuana or Cannabis and Cultivation of Marijuana or Cannabis for non-personal uses are expressly prohibited in all zones and districts of the City of Atwater.
8.52.060 – Indoor Cultivation of Marijuana or Cannabis restricted to authorized
growers.
A. It is hereby declared to be unlawful, a public nuisance and a violation of this Chapter for any person owning, leasing, occupying, or having charge or possession of any parcel within the City to cause or allow such parcel to be used for the Cultivation of Marijuana or Cannabis, unless the person is authorized by state law to grow Marijuana or Cannabis for a specifically authorized purpose within a Private Residence in a residential zone, and such authorized grower is complying with all requirements of this Chapter. A.B. No person shall grow Marijuana or Cannabis in a structure upon any parcel until and unless they first secure a building permit from the building department and pay such fee as may be required and set forth by resolution of the City Council. If said structure is exempt and not required to obtain a building permit no fee shall be required. 8.52.070 – Commercial Operations. Notwithstanding anything to the contrary in this chapter, Commercial Marijuana Operations may occur as allowed by the applicable zoning and pursuant to Title 17, Chapter 17.75, Specific Uses, Section 17.75.120, Marijuana Cultivation, Manufacturing, Testing, Transportation and Distribution. 8.52.0850 – Public nuisance. Any violation of this chapter is hereby declared to be a public nuisance.
Comment [AB7]: This is a policy decision, but is one that I would discourage unless the fee is very low. I would consider any permit costing more than $50 a bad idea as it would discourage compliance.
Comment [AB8]: This seems like a confusing way to say that if an individual is over 21 or has a medical recommendation that they may cultivation. I would suggest amending the definition of authorized grower and using that phrase to encompass this idea.
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It is hereby declared to be unlawful and a public nuisance for any person owning,
leasing, occupying, or having charge or possession of any parcel within the City to
create a public nuisance in the course of Cultivating Marijuana or Cannabis Plants or
any part thereof in any location, indoor or outdoor. A public nuisance may be deemed
to exist, if such activity produces:
A. Odors which are disturbing to people of reasonable sensitivity residing or present on adjacent or nearby property or areas open to the public. B. Responses to the parcel by law enforcement personnel wherein the property owner. licensee, operator, or authorized grower is deemed to have caused nuisance by their direct actions. C. A disruption to the free passage of persons or vehicles in the neighborhood, excessive noise which is disturbing to people of normal sensitivity on adjacent or nearby property or areas open to the public. D. Any other impacts on the neighborhood which are disruptive of normal activity in the area including, but not limited to, grow lighting visible outside the dwelling greenhouse or other legal structure, excessive vehicular traffic or parking occurring at or near the dwelling, and excessive noise emanating from the dwelling. E. Outdoor growing or Cultivation of Marijuana or Cannabis. 8.52.09680 – Violations. A. The remedies and penalties provided herein are cumulative, alternative and nonexclusive. The use of one does not prevent the use of any other criminal, civil, or administrative remedy or penalty authorized by, or set forth in, the Atwater Municipal Code. None of the penalties or remedies authorized by, or set forth in, the Atwater Municipal Code shall prevent the City from using any other penalty or remedy under state statute which may be available to enforce this section or to abate a public nuisance.
B. It shall be unlawful for any Person to violate, or to permit the violation of, any provision of this Chapter. All Owners, Occupants and other Persons at or on the property or premises where a violation of this Chapter occurs may be cited and convicted, provided, however, that an Owner who is not in possession of his/her property, and who has instead permitted another Person(s) to occupy the property, shall not be convicted of a violation unless: (1) the Owner was in fact present at the property during the time in which the violation occurred; or (2) the Owner has been previously issued a citation from the City of Atwater describing a violation of this Chapter and has failed to remedy the violation within a reasonable time; or (3) the Owner has actual knowledge of the existence of a violation of this Chapter and failed to take reasonable steps to remedy the violation on his/her property.
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C. Any violation of this chapter shall be punishable as a misdemeanor. In the alternative, and in the discretion of the Chief of Police, a violation of this chapter may be prosecuted as an infraction punishable pursuant to the provisions of Section 1.01.110 of this Code. In addition, the City may abate any public nuisance associated with any violation of this chapter using the abatement procedures set forth in Chapter 8.32. SECTION 3: Section 17.06.187 of Chapter 17.06 of the City of Atwater Municipal Code is hereby adopted to read in full as follows: 17.06.187 – Crop Cultivation. The cultivation of tree, vine, field, forage, and other plant crops intended to provide food or fibers. The classification excludes wholesale or retail nurseries, vineyards and ancillary wineries and distilleries. This classification includes the indoor cultivation of cannabis, marijuana, and cannabis, marijuana nurseries. SECTION 4: Section 17.06.305 of Chapter 17.06 of the City of Atwater Municipal Code is hereby amended to read in full as follows: 17.06.305 – Industry, industrial operation. The manufacture, fabrication, processing, reduction or destruction of any article, substance or commodity, or any other treatment thereof in such a manner as to change the form, character or appearance thereof and including storage elevators, storage yards, warehouses, wholesale storage and other similar types of enterprises. This classification includes the cultivation, nurseries, processing, extraction, manufacturing, testing, distribution, and transportation of cannabis and cannabis products. SECTION 5: Section 17.75.120 of Chapter 17.75 of the City of Atwater Municipal Code is hereby adopted to read in full as follows: 17.75.120 – Marijuana Cultivation, Nursery, Manufacturing, Testing, Transportation and Distribution. A. Purpose. The purpose of this section is to adopt local regulations applicable to commercial marijuana operations as may be permitted under the California Medical Marijuana Regulation and Safety Act, adopted on October 9, 2015, with legislative bills AB 243, AB 266, and SB 643, or subsequently enacted State law pertaining to the same or similar uses for recreational cannabis. The Medical Marijuana Regulation and Safety Act has been retitled as the Medical Cannabis Regulation and Safety Act, and is hereinafter referred to as the “Act”. B. Definitions. Except as set forth herein, or where a different meaning is clearly intended by the language, the definitions set forth in the Act shall apply to interpretations under this section.
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Comment [AB9]: I am assuming this is applicable once the proper nuisance process has been ignored? I didn’t see anything about posting notices of violation or the like.
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“Act” means the Medical Marijuana Regulation and Safety Act, now called the Medical Cannabis Regulation and Safety Act. Both names may be used interchangeably, but shall have the same meaning. “Applicant” means a person who is required to file an application for a permit under this section. “Business Owner” means the owner(s) of the Marijuana Operations. For corporations and limited liability companies, Business Owner means the President, Vice President, and any shareholder owning a 10% or greater share of the corporation or company. For partnerships, Business Owner means all general partners and managing partners. “Cannabis” or “marijuana” shall have the meaning set forth in California Business and Professions Code § 19300.5(f). Cannabis and marijuana may be used interchangeably, but shall have the same meaning. “City” means the City of Atwater. “Commercial Marijuana Operation” or “Marijuana Operation” means any commercial marijuana activity allowed under the Act and the implementing regulations, as the Act and the implementing regulations may be amended from time to time, and all uses permitted under any subsequently enacted State law pertaining to the same or similar uses for recreational cannabis. “Commercial Marijuana Regulatory Permit” or “Regulatory Permit” means the permit required under this section to have a Commercial Marijuana Operation. “Employee Permit” means the permit required under this section for every employee or independent contractor working at a Commercial Marijuana Operation or involved in transportation/delivery related services for a Commercial Marijuana Operation."Distribution" means the procurement, sale, and transport of marijuana and marijuana products between entities licensed pursuant to this chapter or similar entities licensed in other jurisdictions within the State of California and/or by The State of California. “Employee Permit” means the permit required under this section for every employee or independent contractor working at a Commercial Marijuana Operation or involved in transportation/delivery related services for a Commercial Marijuana Operation “Gross receipts” mean the total of the amounts of monetary consideration actually received or receivable for medical marijuana, medical marijuana products, overhead costs, operating expenses, or related services whatsoever, including, but not limited to: membership dues, any monetary contributions, payments, reimbursements or fees for cultivation, distribution, dispensing, storing, exchanging, processing, delivering, making available, or transmitting medical marijuana or medical marijuana edible products
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Comment [AB10]: I would suggest putting some reference to the state distribution license in case definitions change at the state level.
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pursuant to Health and Safety Code Sections 11362.5 and 11362.7 through 11362.83, overhead costs, operating expenses, or services in connection therewith. Included in gross receipts shall be all receipts, cash, credits, and property of any kind without deduction of the cost of the property sold, the cost of the materials used, labor or service costs, interest paid or payable, or losses or other expenses whatsoever. "Manufacture" means to compound, blend, extract, infuse, or otherwise make or prepare a marijuana product. "Manufacturer" means a person that conducts the production, preparation, propagation, or compounding of marijuana or marijuana products either directly or indirectly or by extraction methods, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis at a fixed location that packages or repackages marijuana or marijuana products or labels or re-labels its container, that holds a state license pursuant to this division. “Non-Commercial and Recreational Marijuana Activity” means all uses not included within the definition of Commercial Marijuana Operation, including the personal use, cultivation, or consumption of marijuana, whether medical or recreational. “Nursery” means a licensee or operator that produces clones, immature plants, seeds, and other agricultural products used specifically for the planting, propagation, and cultivation of marijuana. “Operator” means the Business Owner and any other person designated by the Business Owner as responsible for the day to day Marijuana Operations. “Ordinance” means the ordinance adopting this section, and including the terms of this section, which may be commonly referred to as the City’s “Commercial Marijuana Ordinance”. “Police Chief” means the Police Chief of the City of Atwater or his or her designee. “Premises” or “Site” means the actual building(s), and/or designated units/suites, as well as any accessory structures, parking areas, or other immediate surroundings, and includes the entire parcel of property used by the Business Owner in connection with the Marijuana Operations. “Premises Owner” means the fee owner(s) of the Premises where Marijuana Operations are occurring. “Responsible Party” shall mean the Business Owner, Operator, manager(s), and any employee having significant control over the Marijuana Operations. "Testing" means a laboratory, facility, or entity in the state, that offers or performs tests of marijuana or marijuana products, including the equipment provided by such
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Comment [AB11]: Why is packaging included in the definition here?
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laboratory, facility, or entity, and that is both of the following: (1) Accredited by an accrediting body that is independent from all other persons involved in commercial marijuana activity in the state. (2) Registered with the Department of Public Health. “Transportation” or “Transport” means the transfer of marijuana from the commercial marijuana operation of one licensee to the permitted business location of another licensee, for the purposes of conducting commercial marijuana activity authorized pursuant to this chapter or by the State of California. C. Permitted Uses and Zoning. Business Owners meeting the requirements of this section shall be allowed to conduct the following Commercial Marijuana Operations in the M-1 Light Industrial Zone, M-2 Heavy Industrial Zone, and B-P Business Park District Overlay district of the City:
Cultivation.
Processing.
Extraction.
Manufacturing.
Nursery operations.
Testing.
Distribution.
Transportation.
The Commercial Marijuana Operation shall at all times be in compliance with this section as it may be amended from time to time or repealed and replaced by another section governing the Commercial Marijuana Operation. It is the intent to provide for the ability for Business Owners to have multiple Commercial Marijuana Operations vertically integrated within one building or location. Business Owners can conduct any of the Permitted Uses provided that the Regulatory Permit specifically identifies the permitted uses. Separate locations, physical properties or parcels, shall require separate Regulator Permit for each location. Dispensaries are expressly prohibited unless approved by the voters of the City of Atwater. As an alternative the City Council may consider the following; Dispensaries are permitted only when vertically integrated into an operation which includes at least two other permitted uses within this code, excluding testing, distribution, and transportation activities. The Dispensary use shall be no greater than one quarter of the overall business operations in terms of total square feet of the facilities. Under no circumstances shall a Dispensary be allowed as an independent or stand alone use.
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Comment [AB12]: I would include some mention of “in compliance with State law” as licensees are limited to 2 licenses under state rules.
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Comment [AB13]: This is only possible under a 10A license at the State level, otherwise a dispensary could only be one of two operations. Feel free to call me about this license limitation.
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D. Minimum Operational Requirements and Restrictions. The following operational requirements and restrictions shall apply to all Commercial Marijuana Operations:
1. The Act and Other State Laws. The Marijuana Operations shall at all times be in compliance with the Act and the implementing regulations, as they may be amended from time to time, as well as all required State license(s) under the Act, and any other applicable State law. The Operator shall obtain required licenses under the Act prior to opening for business, or if the State is not ready to issue licenses under the Act prior to the time of opening, within twelve (12) months of the State being ready to issue the required license(s). Provided, however, that the Operator shall at all times be in compliance with all other requirements of the Act and implementing regulations, and any other applicable State law, regardless of the timing of the issuance of a license under the Act.
If the Operator uses the approved Marijuana Operations for commercial medical or recreational cannabis, the Operator shall meet or exceed the health and safety requirements of the Act in any operations relating to recreational marijuana.
2. Register of Employees. The Operator shall maintain a current register of the names of persons required to have Employee Permits. The register shall be available to the Police Chief at all times immediately upon request.
3. Signage. There shall be no signage or markings on the Premises, or off
site, which in any way evidences that Marijuana Operations are occurring on the property. Interior building signage is permissible provided the signage is not visible outside of the building.
4. Marijuana Consumption. No marijuana shall be smoked, ingested or
otherwise consumed on the Premises. Adequate signage of this prohibition shall be displayed throughout the facility.
5. Alcoholic Beverages. No Marijuana Operation shall hold or maintain a
retail license from the State Department of Alcohol Beverage Control to sell alcoholic beverages, or operate a business that sells alcoholic beverages. In addition, alcohol for personal consumption shall not be provided, stored, kept, located, sold, dispensed, or used on the Premises.
6. Transportation. Transportation shall only be conducted according to
activity permitted by State law. 7. Distribution. There shall be no deliveries from the Premises of cannabis
or cannabis containing products except to another State or local licensed or permitted cannabis business.
8. Non-Commercial Marijuana Activity. No Non-Commercial or Recreational
Marijuana Activity shall occur on the Premises.
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Comment [AB14]: This is the first mention of Employee Permits, but since it is explained lower down your order of definitions is a style choice.
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Comment [AB15]: I would include a phrase, “Unless required by the Act” as there may be signage requirements.
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9. Retail Sales. The retail sale of marijuana is expressly prohibited. The City Council could also consider the following; Retail Sales are allowed only in a vertically integrated business operation where the Dispensary use is integrated into an operation which includes at least two other permitted uses within this code, excluding testing, distribution and transportation activities. The Dispensary use shall be no greater than one quarter of the overall business operations in terms of total square feet of the facilities.
10. Public Access. There shall be no public access to the Premises. 11. Minors. It shall be unlawful for any Operator to employ any person who is
not at least eighteen (18) years of age, or any older age if set by the State. 12. Distance separation from schools. Commercial Marijuana Operations
shall comply with the distance separation requirements from schools as required by State law, six hundred (600) feet. In addition, a Commercial Marijuana Operation shall not be located within 1800 feet from any existing school or proposed school site as identified in the General Plan. In addition, Commercial Marijuana Operation shall also not be located within six hundred (600) feet of a proposed school site as identified in the General Plan. Measurements shall be from property boundary to property boundary. For purposes of this section, school means any public or private school providing instruction in kindergarten or grades 1-12, inclusive, but does not include any private school in which education is primarily conducted in private homes.
13. Hours of Operation. Commercial Marijuana Operations shall be allowed to
operate per the requirements of the underlying zone district and subject to the City’s noise and nuisance ordinances.
14. Building and Related Codes. The Marijuana Operation shall be subject to
the following requirements:
a. The Premises in which the Marijuana Operations occur shall comply with all applicable local, state and federal laws, rules, and regulations including, but not limited to, building codes and the Americans with Disabilities Act, as certified by the Building Official of the City. The Operator shall obtain all required building permits and comply with all applicable City standards.
b. The Responsible Party shall ensure that the Premises has sufficient
electrical load for the Marijuana Operations.
c. Butane and other flammable materials are permitted to be used for extraction and processing provided the Operator complies with all applicable fire and building codes, including obtaining an Aerosol Permit, and any other laws and regulations relating to the use of those products, to ensure the safety of that operation. The Atwater Fire Department shall inspect and approve the Premises for use of the products prior to City’s issuance of a certificate of occupancy, or otherwise prior to opening for business, to ensure compliance with this requirement. The Atwater Fire
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Comment [AB16]: Once again, this is only possible with a 10A license.
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Comment [AB17]: This makes all cannabis activity illegal, there should be some explanation here so that other federal rules can apply.
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Comment [AB18]: I would use the term “volatile solvents” so that you are mirroring the language of cannabis concentrate creation.
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Ordinance No. CS Page 17
Department shall also conduct annual inspections and shall charge a fee as adopted by the Atwater City Council for the conduct of the inspection.
d. The Operator shall comply with all laws and regulations pertaining
to use of commercial kitchen facilities for the Marijuana Operations.
e. The Operator shall comply with all environmental laws and regulations pertaining to the Marijuana Operations, including the use and disposal of water and pesticides, and shall otherwise use best practices to avoid environmental harm.
15. Odor control. Marijuana Operations shall provide a sufficient odor
absorbing ventilation and exhaust system so that odor generated inside the facility that is distinctive to its operation is not detected outside the Premises, outside the building housing the Marijuana Operations, or anywhere on adjacent property or public rights-of-way. As such, Marijuana Operations must install and maintain the following equipment or any other equipment which the City’s Building Official determines has the same or better effectiveness, if a smell extends beyond a property line:
a. An exhaust air filtration system with odor control that prevents
internal odors and pollen from being emitted externally; or
b. An air system that creates negative air pressure between the cannabis facility’s interior and exterior so that the odors generated inside the cannabis facility are not detectable outside the cannabis facility.
16. Consumable Products. Marijuana Operations that manufacture products
in the form of food or other comestibles shall obtain and maintain the appropriate approvals from the State Department of Public Health for the provision of food or other comestibles, unless otherwise governed by the Act and licensed by the State.
17. Secure Building. All Marijuana Operations shall occur entirely inside of a
building that shall be secure, locked, and fully enclosed, with a ceiling, roof or top. The building shall include a burglar alarm monitored by an alarm company or private security company. The building, including all walls, doors, and the roof, shall be of solid construction meeting the minimum building code requirements for industrial structures (including, without limitation, commercial greenhouse structures), and include material strong enough to prevent entry except through an open door. Notwithstanding the foregoing, the roof may be of solid translucent material provided other security measures exist to ensure that the Marijuana Operation cannot be seen, heard or smelled beyond the property line. The precise building construction and material to be used shall be identified and provided to the City prior to construction and provided with the application.
18. Premises Security. The following security conditions shall apply:
a. Alarm System (both perimeter and fire and panic).
Comment [AB19]: “if applicable” could be helpful for clarification so that cultivation sites don’t think they need commercial kitchen standards for their grow rooms
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Comment [AB20]: This is the kind of language that I think section d would benefit from. The “in the form of food or other comestibles” would be an excellent way to limit the commercial kitchen requirement.
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Ordinance No. CS Page 18
b. Remote monitoring of alarm systems.
c. Perimeter lighting systems (motion sensor) for after-hours security.
d. Perimeter security and lighting must be approved by the Police
Chief and Community Development Director.
e. Use of drive gates with card key access or similar to access the facility. The operator shall install facilities as directed and only as approved by the Police Department to ensure emergency services.
f. Entrance areas to be locked at all times, and under the control of a
designated Responsible Party.
g. Use of access control systems to limit access to grow and processing areas.
h. Exterior and interior camera systems approved by the Police Chief.
The camera systems shall meet the minimum requirements of the Act, include interior monitoring of all access points of the site from the interior, and be at a minimum of 5 mega pixels in resolution.
i. All security systems at the site must be attached to an
uninterruptable power supply, battery backup, or generator supply that provides 24 hours of operational power.
j. 24 hour private security patrols by a recognized security company
licensed by the California Department of Consumer Affairs or otherwise acceptable to the Police Chief.
k. All current contact information regarding the security company shall
be provided to the Police Chief.
l. Atwater Police Department or Department designee shall have access to all security systems.
m. Subject to the provisions below regarding the use and handling of
Confidential Information, IP access for remote monitoring of security cameras by the Atwater Police Department or Department designee.
n. Subject to the provisions below regarding the use and handling of
Confidential Information, any and all video or audio tape recordings made for security or other purposes shall be marked with the date and time made and shall be kept, in an unaltered state, for a period of thirty (30) days and must be made available to the Atwater Police Department or Department designee for duplication upon demand. In
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Comment [AB21]: This requirement will be cost prohibitive for many individuals. I understand the desire for it, but if it was changed to “24 hour private security surveillance” you might not scare off as many operators.
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Comment [AB22]: The grammar is a little confusing here. I would mirror the “shall be provided to” or “shall have access to” language.
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Ordinance No. CS Page 19
addition, upon request by the Atwater Police Department the Responsible Party shall duplicate the records for the Atwater Police Department or Department designee.
o. Hardened bullet resistant windows for exterior windows as part of
any new or existing construction, except for commercial green house structures.
p. Accounting software systems need to be in place to provide audit trails of both product and cash, where applicable.
q. Electronic track and trace systems for cannabis products as
approved by the Police Chief.
r. Premises may be inspected and records of the Business Owner audited by the City for compliance on a quarterly basis.
s. State of the art network security protocols and equipment need to
be in place to protect computer information.
t. The foregoing requirements shall constitute the Security Plan and shall be approved by the Police Chief prior to commencing operations. The Police Chief may supplement these security requirements once operations begin if at their professional discretion additional measures are required. Those requirements may be, subject to review by the Community Development and Resource Commission City Council if requested by the Business Owner. The review and decision by the Community Development and Resource Commission may also be appealed to the Atwater City Council by the Business Owner.
Confidentiality Statement. The City, Police Chief, Police Department employees, and any other law enforcement official acting under the direction of the Police Chief who access the Premises and video and/or audio feeds or recordings of the Premises (“Recipients”) may receive or be provided with confidential information relating to the Marijuana Operations, which may include the following: data, records, plans, and matters relating to customers, vendors, tenants, agreements, and business records (collectively “Confidential Information”). To the extent Confidential Information is acquired without a warrant from access to the Premises and video and/or audio feeds or recordings as authorized under this section, the Recipients shall, to the maximum extent possible, keep such Confidential Information confidential and not disclose the Confidential Information to any third parties. Provided, however, that the Recipients may disclose Confidential Information to the State or Federal courts in California in connection with any criminal law enforcement action against the Business Owner or Operator (including its employees, contractors and agents conducting business within the Premises) arising from or related to the Marijuana Operations, but only to the extent it is necessary and relevant to such criminal prosecution, and the Recipients shall file any such documents under seal to the extent they contain any Confidential Information.
Comment [AB23]: This is also a rather high bar and could discourage operators or compliance.
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Comment [AB24]: This seems vague. I suppose since it will all be submitted to the Police Chief that they will approve or disapprove the security, but it might be good to mirror that approval in this section too.
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Ordinance No. CS Page 20
Notwithstanding the foregoing, the City may disclose Confidential Information:
1. As may be required by the California Public Records Act or pursuant to a civil subpoena, provided however, the City shall notify the Operator and provide the Operator with a reasonable opportunity to obtain a protective order before disclosing the Confidential Information.
2. In connection with any City enforcement proceeding relating to compliance with the City’s Municipal Code and this section, but only to the extent the Confidential Information is relevant to the proceeding.
19. Deliveries of Supplies and Transportation of Product. The following rules
apply to the deliveries and transportation:
a. Deliveries to the Premises of supplies shall only occur as provided for in the diagram and floor plan on file with the City as part of the application process. Delivery vehicles shall not have any markings indicating that deliveries are being made to a Marijuana Operation.
b. The transportation of marijuana samples and product to and from
the Premises shall be in unmarked vehicles with no indication that the vehicles are transporting marijuana samples and products. The Responsible Party shall stagger transportation times, vary routes from the facility, and take other security measures as requested by the Police Chief.
20. Premises Maintenance. The Business Owner, Operator, and all
Responsible Parties shall continually maintain the Premises and its infrastructure so that it is visually attractive and not dangerous to the health, safety and general welfare of employees, patrons, surrounding properties, and the general public. The Premises or Commercial Marijuana Operation shall not be maintained in a manner that causes a public or private nuisance.
21. Location of Uses. The Commercial Marijuana Operation permitted by this
section shall only be allowed in the locations designated on the diagram and floor plan of the Premises submitted with the application for a Regulatory Permit. The Commercial Marijuana Operation shall not operate at any place other than the address of the Marijuana Operation stated in the Regulatory Permit.
E. Commercial Marijuana Regulatory Permit. No person or entity shall operate a Commercial Marijuana Operation within the City of Atwater without first obtaining a Commercial Marijuana Regulatory Permit from the City. The Regulatory Permit shall be site specific and shall specifically identify the commercial marijuana activity that will be allowed at that site. No commercial marijuana activity will be allowed unless specifically identified in the Regulatory Permit.
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Comment [AB25]: Not knowing if the state will require any markings, I would consider added a , “unless otherwise required by state law” just to be safe.
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Comment [AB26]: Maybe an “if and as requested” so that locations that cannot vary routes are not excluded because of this.
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F. Conditional Use Permit. Prior to, or concurrently with, applying for a Regulatory Permit, the Applicant shall process a Conditional Use Permit as required by the City’s Land Use Regulations. Information that may be duplicative in the two applications can be incorporated by reference. The Conditional Use Permit shall run with the Regulatory Permit and not the land.
G.F. Applications for Regulatory Permits and Responsible Party Designation.
1. Application. Applications for Regulatory Permits shall be filed by the proposed Business Owner(s) with the Police Chief or designee and include the information set forth herein. The Police Chief or designee may request such information he or she deems necessary to determine the identity of the applicant. The applicant shall certify under penalty of perjury that all of the information contained in the application is true and correct. The application shall contain the following items for the Business Owner(s), Operator(s) and all Responsible Parties known at the time (if different than the Business Owner), and any other party designated below, to the extent the same shall apply:
a. The full name(s), present address(es), and telephone number(s),
including such information to the Premises Owner.
b. Date(s) of birth.
c. Tax identification number(s).
d. The address to which notices relating to the application is to be mailed.
e. Previous addresses for the five (5) years immediately preceding the
date of submittal of the application form.
f. The height(s), weight(s), eye color(s) and hair color(s).
g. Photographs for identification purposes (photographs shall be taken by the Police Department).
h. All business, occupation, or employment for the five (5) years
immediately preceding the date of submittal of the application form.
i. The Marijuana Operation business history, including whether the Business Owner(s) and Responsible Parties while previously operating in this or another city, county or state has had a marijuana related license revoked or suspended, the reason therefore, and the business or activity or occupation subsequent to such action of suspension or revocation.
j. Complete property ownership and lease details, where applicable.
If the Business Owner(s) areis not the Premises Owner, the application form must be
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accompanied with a notarized acknowledgment from the Premises Owner that Marijuana Operations will occur on its property.
k. A descriptive business plan for the Marijuana Operation, including a
detailed list of all Marijuana Operations proposed to occur on the Premises.
l. A diagram and floor plan of the entire Premises, denoting all the use of areas proposed for Marijuana Operations, including, but not necessarily limited to, cultivation, processing, manufacturing, testing, transportation, deliveries, and storage. The diagram and floor plan need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the Premises to an accuracy of plus or minus six (6) inches.
m. The name or names of the Operator(s). The Operator(s) shall
designate one or more Responsible Parties, one of which shall at all times be available as a point of contact for the City, 24 hours per day. The contact information and schedule of the Operator and Responsible Parties shall be provided to the Police Chief and updated within twenty-four (24) hours of any changes.
n. The proposed security arrangements for insuring the safety of
persons and to protect the Premises from theft.
o. An accurate straight-line drawing prepared within thirty (30) days prior to the application depicting the building and the portion thereof to be occupied by the Marijuana Operation and the property line of any school as set forth in the Operational Requirements.
p. Authorization for the City, its agents and employees to seek
verification of the information submitted. 2. Improper or Incomplete Application. If the applicant has completed the
application improperly, or if the application is incomplete, the Police Chief or designee shall, within thirty (30) days of receipt of the original application, notify the applicant of such fact.
3. Changes in Information. Except as may otherwise be provided, the
information provided in this subsection shall be updated to the Police Chief or designee upon any change within ten (10) days.
4. Other Permits or Licenses. The fact that an applicant possesses other
types of State or City permits or licenses does not exempt the applicant from the requirement of obtaining a Regulatory Permit.
H.G. Employee Permits.
1. Permit Required. Every employee or independent contractor working at a Commercial Marijuana Operation or involved in transportation/delivery related services
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for a Marijuana Operation shall obtain an Employee Permit. It shall be the duty of the Operator to ensure that Employee Permits are obtained from the Police Department prior to the employee or independent contractor commencing work. Persons who are listed as a Business Owner on a Regulatory Permit shall not be required to obtain an Employee Permit if such person also serves as an employee or contractor. All Responsible Parties, except the Business Owner, shall be required to obtain an Employee Permit.
2. Application. Each employee and independent contractor shall be required to provide the following information under penalty of perjury, so that the Police Department can perform a background check:
a. Name, current resident address, and telephone number. b. Date of birth. c. Tax identification number. d. Height, weight, eye color and hair color. e. Photographs for identification purposes (photographs shall be taken
by the Police Department). f. Be fingerprinted by the Police Department. g. Such other identification and information as deemed necessary by
the Police Chief and pertinent to the Employee Permit. h. Authorization for the City, its agents and employees to seek
verification of the information contained within the application. i. The name of the Business Owner holding the Regulatory Permit
and the Operator for which such person is proposed to work.
I.H. Application Fees.
Every application for a Security Plan, Regulatory Permit, Employee Permit, or renewals shall be accompanied by a nonrefundable fee, as established by resolution of City Council. This fee shall be in addition to any other business license fee or permit fee imposed by this Code or other governmental agencies. The fee shall include an amount to cover the costs of fingerprinting, photographing, background checks as well as general review and processing of the application. No applications shall be issued until all fees are paid in full.
J.I. Investigation and Action on Application.
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Comment [AB27]: This seems to include vendors or other licensees that the licensee works with. If you mean to exclude other licensed commercial cannabis entities I would mention that.
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Comment [AB28]: What will the city consider disqualifying prior convictions? Some kind of indication is a good idea since many medical cannabis advocates and industry members have cannabis related convictions.
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Comment [AB29]: It seems like the security plan will have to be included in the regulatory permit application. Does this mean you have to pay for them separately upon final submission, or just pay for the security plan and then include the approved security plan with the regulatory permit and the regulatory permit fee?
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Ordinance No. CS Page 24
1. Upon the filing of a properly completed application and the payment of the fee, the Police Chief shall conduct an investigation of the application, including a background check of the applicant and all employees and independent contractors. All applicants for a Regulatory Permit and Employee Permit shall be required to submit to a fingerprint-based criminal history records check conducted by the Atwater Police Department.
2. For Regulatory Permits, after the background checks and investigation are
complete, and in no case later than ninety (90) days after receipt of a properly completed application, the Police Chief shall issue a recommendation that the Community Development and Resource Commission City Council approve or deny a Regulatory Permit in accordance with the provisions of this section. The recommendation shall be forwarded to the Community Development and Resource Commission for action following any required noticing, shall be subject to a public hearing, and may be processed concurrently with any other entitlements necessary for the Marijuana Operation. The recommendation for approval shall include conditions the Police Chief deems reasonable under the circumstances to protect the public health, safety, and welfare of the community and shall incorporate any conditions specific to the Security Plan as approved by the Police Chief. The recommendation shall be forwarded to the City Council for action following any required noticing and public hearings, and may be processed concurrently with any other entitlements necessary for the Marijuana Operation.
3. For Employee Permits, after the background checks and investigation are
complete, and in no case later than thirty (30) days after receipt of a properly completed application, the Police Chief shall either approve or deny an Employee Permit. At the discretion of the Police Chief, Employee Permits may be conditionally approved pending the background investigation and formal approval of the Regulatory Permit.
K.J. Term of Permits, and Renewals, Transfer of Ownership.
Regulatory Permits issued under this Chapter shall expire one (1) year following the date of issuance. Applications for renewal shall be made at least forty-five (45) days prior to the expiration date of the permit and shall be accompanied by the nonrefundable fee as adopted by resolution of the Atwater City Councilreferenced in this section. When made less than forty-five (45) days before the expiration date, the expiration of the permit will not be stayed. Applications for renewal shall be acted on similar to applications for permits except that the Police Chief shall renew annual permits for additional one year periods if the circumstances and information provided with the initial application have not materially changed. A Regulatory Permit Holder may file a request to Transfer Ownership of the business and Permit to the Police Chief, the request needs to be in writing and shall be made at least forty-five (45) days prior to the transfer. The Police Chief shall review the request and may require additional background material on the proposed operator. The original term of the Regulatory Permit shall stay in effect including the renewal date.
L.K. Grounds for Denial of Regulatory Permit.
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The grounds for denial of a Regulatory Permit shall be one or more of the
following: 1. The business or conduct of the business at a particular location is
prohibited by any local or State law, statute, rule or regulation. 2. The Business Owner or Operator has been issued a local or state permit
related to Marijuana Operations at any other location in California, or another state, and that permit was suspended or revoked, or the Business Owner or Operator has had disciplinary action relating to the permit.
3. The Business Owner or Operator has knowingly made a false statement
of material fact or has knowingly omitted to state a material fact in the application. 4. Consistent with the Act or other applicable State law, the Business Owner
or Operator, or any Responsible Person, has been:
a. Convicted of a serious or violent offense as listed under California Penal Code §§ 667.5 and 1192.7(c); or
b. Convicted of any of the offenses listed in Business and Professions
Code § 19323; or.
c. Convicted of a misdemeanor involving moral turpitude as defined under State law (generally crimes relating to theft and dishonesty) within the five (5) years preceding the date of the application; or
d. Convicted of a felony involving the illegal use, possession,
transportation, distribution or similar activities related to controlled substances, as defined in the Federal Controlled Substances Act, unless that conviction was subsequently dismissed pursuant to sections 1203.4, 1203.4a or 1203.41 of the Penal Code or any other provision allowing for dismissal of a conviction, or, the individual has received a Certificate of Rehabilitation as defined in the Act; or
e. Has engaged in misconduct related to the qualifications, functions
or duties of a permittee, such as lying on an application, falsifying legal documents, or anything that would otherwise ban the permittee from obtaining a State license under the Act.
A conviction within the meaning of this subsection means a plea or verdict of
guilty or a conviction following a plea of nolo contendere. 5. Consistent with the Act or other applicable State law, the Business Owner
or Operator has engaged in unlawful, fraudulent, unfair, or deceptive business acts or practices.
Comment [AB30]: This looks to exclude failed applications elsewhere or registrations that did not rise to the level of permits. I think that such exclusion is a good idea, as it isn’t relevant, but some inclusion of not having to include failed applications might be a good idea and would limit your receipt of unnecessary paperwork.
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Comment [AB31]: This includes much of what you included in section d.
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Comment [AB32]: Cannabis related charges for these activities, and others included in 19323 but not here, were lowered to misdemeanors by Prop 64, does this mean you will not consider misdemeanor violations disqualifying?
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6. The Business Owner or Operator is under eighteen (18) years of age, or any older age set by the State.
7. The Marijuana Operation does not comply with the zoning ordinance
standards of the City of Atwater or the development standards set forth in this Title. 8. The required annual business license fee, annual regulatory fee or
revenue raising fee has not been paid.
M.L. Grounds for Denial of Employee Permit. The grounds for denial of an Employee Permit shall be one or more of the following:
1. The applicant has been issued a local or state permit related to Marijuana
Operations at any other location in California, or another state, and that permit was suspended or revoked, or the applicant has had disciplinary action relating to the permit.
2. Consistent with the Act or other applicable State law, the applicant has
been:
a. Convicted of a serious or violent offense as listed under California Penal Code §§ 667.5 and 1192.7(c); or
b. Convicted of any of the offenses listed in Business and Professions
Code § 19323; or.
c. Convicted of a misdemeanor involving moral turpitude as defined under State law (generally crimes relating to theft and dishonesty) within the five (5) years preceding the date of the application; or
d. Convicted of a felony involving the illegal use, possession,
transportation, distribution or similar activities related to controlled substances, as defined in the Federal Controlled Substances Act, unless the that conviction was subsequently dismissed pursuant to sections 1203.4, 1203.4a or 1203.41 of the Penal Code or any other provision allowing for dismissal of a conviction, or, individual has received a Certificate of Rehabilitation as defined in the Act; or
e. Has engaged in misconduct related to the qualifications, functions
or duties of a permittee. 3. Consistent with the Act or other applicable State law, the applicant has
engaged in unlawful, fraudulent, unfair, or deceptive business acts or practices. 4. The applicant has committed any act, which, if done by a permittee, would
be grounds for suspension or revocation of a permit. 5. An applicant is under eighteen (18) years of age, or any older age set by
the State.
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N.M. Notice of Decision and Final Action.
1. Regulatory Permit. Action on the Regulatory Permit shall be as follows:
a. The Police Chief shall cause a written notice of his or her recommendation on the issuance or denial of a Regulatory Permit, and the date and time when the Community Development and Resource Commission City Council will hold the public hearing to consider action on the Regulatory Permit, to be personally delivered or mailed to the applicant by certified U.S. mail, postage prepaid.
b. Following a public hearing before the Community Development and Resource CommissionCity Council, the Council Commission may grant the Regulatory Permit subject to such conditions as it deems reasonable under the circumstances to protect the public health, safety, and welfare of the community,community or it may deny the issuance of the Regulatory Permit for any of the grounds specified in this section. The decision of the Commission may be appealed to the City Council within seven business days of the action by the Community Development and Resource Commission. The decision of the City Council shall be final, subject to judicial review below.
2. Employee Permit. Action on the Employee Permit shall be as follows:
a. The Police Chief shall cause a written notice of his or her determination on the issuance or denial of an Employee Permit to be personally delivered or mailed to the applicant by certified U.S. mail, postage prepaid. The Police Chief’s decision on an Employee permit shall be final, subject to judicial review.
O.N. Suspension and Revocation of Regulatory Permit or Employee Permit.
1. Regulatory Permit. Following a public hearing at which time a review of the Regulatory Permit is conducted the Community Development and Resource Commission, T he City Council may suspend or revoke the Regulatory Permit of a Commercial Marijuana Operation, subject to appeal to the Atwater City Council, when any of the following occur:
a. The Marijuana Operation is conducted in violation of any provision
of this section, the Act, or any other applicable state law.
b. The Marijuana Operation is conducted in such a manner as to create a public or private nuisance.
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c. A failure to pay the Regulatory Fee or Revenue Raising Fee required by this section.
d. A failure to take reasonable measures to control patron conduct, where applicable, resulting in disturbances, vandalism, or crowd control problems occurring inside of or outside the Premises, traffic control problems, or obstruction of the operation of another business.
e. A failure to comply with the terms and conditions of the Regulatory Permit or any conditional use permit issued in connection therewith.
f. Any act which would be considered grounds for denial of the Regulatory Permit in the first instance.
2. Employee Permit. The Police Chief may suspend or revoke an Employee
Permit when the permittee or the employee has committed any one or more of the following acts:
a. Any act which would be considered a ground for denial of the
permit in the first instance.
b. Any act which violates any provision of this section, the Act, or any other applicable law relating to the Marijuana Operation.
c. Any act which violates or fails to comply with the terms and
conditions of the Employee Permit. 3. Procedures for Revoking Regulatory Permits. For Regulatory Permits, the
procedures for revoking conditional use permits shall be utilized except that the matter shall be heard by the City Council in the first instance, and shall be subject to the same judicial process as applied to a Conditional Use Permit. (See, Atwater Municipal Code Chapter 17.71.)
4. Procedures for Revoking Employee Permits. Prior to suspension or
revocation of an Employee Permit, the Police Chief shall conduct an administrative hearing. Written notice of the time and place of such hearing shall be served upon the permittee at least five (5) calendar days prior to the date set for such hearing. The notice shall contain a brief statement of the grounds to be relied upon for revoking or suspending the permit. Notice may be given either by personal delivery or by certified U.S. mail, postage prepaid. Any permittee aggrieved by the decision of the Police Chief in suspending or revoking an Employee Permit shall have no appeal rights and the Police Chief’s decision shall be final, subject to judicial review as set forth in this section.
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5. Immediate Suspension. The Police Chief may immediately suspend or revoke a Regulatory Permit and an Employee Permit without notice or a hearing, subject to the appeal rights set forth herein, under either of the following circumstances:
a. The Business Owner or Operator is convicted of a public offense in
any court for the violation of any law which relates to the Marijuana Operation, or in the case of an Employee Permit, the employee is convicted of a public offense in any court for the violation of any law which relates to the permit.
b. The Police Chief determines that immediate suspension is necessary to protect the public health, safety, and welfare of the community. The Police Chief shall articulate the grounds for the immediate suspension in writing and the suspension shall only be for as long as necessary to address the circumstances which led to the immediate suspension.
P.O. Effect of Denial or Revocation. When the Community Development and Resource Commission City Council, or if their decision is appealed and the City Council shall have denied a Regulatory Permit or revoked a Regulatory Permit, or the Police Chief shall have denied or revoked an Employee Permit, no new application for a Regulatory Permit and no new application for an Employee Permit shall be accepted and no Regulatory Permit or Employee Permit shall be issued to such person or to any corporation in which he or she shall have any beneficial interest for a period of one (1) year after the action denying or revoking the Regulatory Permit or Employee Permit. Q.P. Abandonment. In addition to the suspension or revocation of a Regulatory Permit, a Regulatory Permit shall be deemed abandoned if Marijuana Operations cease for a period of more than ninety (90) consecutive days. Before restarting operations, a new Regulatory Permit shall be secured. The 90 day period shall be tolled during periods of force majeure, which shall be defined as follows: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; supernatural causes; acts of the “public enemy”; epidemics; quarantine restrictions; freight embargoes; lack of transportation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; or any other causes beyond the reasonable control of the permittee.
R. Water Availability. As a condition of opening for business, the Premises Owner, Business Owner, Operator, and all Responsible Parties shall be deemed to have acknowledged and agreed to the following if the Marijuana Operation is connected to the City’s water system:
The City’s source of water comes through a contract with the Bureau of Reclamation (“Bureau”). The Bureau has indicated that it will report the use of City water for Marijuana Operations to the Department of Justice. While the City believes that supplying water to the site does not impair the Bureau contract, should the Bureau, Department of Justice, or other governing agency take actions affecting the City’s
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Bureau contract because of the Marijuana Operation, the City may be forced to curtail or commingle water supply to the Site. Under those circumstances, the Marijuana Operation may be required to find alternative sources of water supply. If that happens, the City agrees to work with the Premises Owner, Business Owner, and Operator to find an alternative water source, which may include the commingling of water, accessing a well, or having water delivered to the Site by separate contract, but the City cannot provide any guarantees. The Premises Owner, Business Owner, and Operator assume all risk associated with water supply to the Site, including all costs associated therewith. The Premises Owner, Business Owner, Operator, and all Responsible Parties shall hold harmless, release, indemnify, and defend the City, its officers, employees, and agents, from any liability associated with the curtailment of water because of the foregoing. This release includes any damages to the Premises Owner, Business Owner, Operator, and all Responsible Parties, its employees and contractors, and third parties, and includes the risk of lost revenue, profits and consequential damages.
S.Q. Fees and taxes. All Marijuana Operations shall pay applicable fees and taxes, which may include one or more of the following.
1. Business License Fee. The Business Owner shall at all times maintain a current and valid business certificate and pay all business taxes required by Title 5, Chapter 5.04, of the Atwater Municipal Code pertaining to Business Licensing.
2. Regulatory License Fee. The Business Owner shall pay an annual
regulatory license fee (“Regulatory Fee”) to cover the costs of anticipated enforcement relating to the Marijuana Operation. The Regulatory license may encompass multiple permitted uses by a single commercial marijuana operation. The regulatory license fee shall cover all permitted aspects or uses conducted by the license holder. The amount of the fee shall be set by Resolution of the City Council and be supported by the estimated additional costs of enforcement and monitoring associated with the Marijuana Operation. The Regulatory Fee shall be due and payable prior to opening for business and thereafter on or before the anniversary date. The Regulatory Fee may be amended from time to time based upon actual costs.
3. Revenue Raising Fee. An annual revenue raising fee (“Revenue Fee”) for
the privilege of having the right to operate in the City.
a. Revenue Fee Finding. The City Council specifically finds that it is approving this Ordinance allowing Commercial Marijuana Operations to open in the City on the express understanding that the business will pay the Revenue Fee to the City as set forth herein, and that without the Revenue Fee, the City Council would not have adopted this Ordinance allowing Commercial Marijuana Operations to open in the City. By opening a Commercial Marijuana Operation in the City, the Premise Owner, Business Owner, Operator, and all Responsible Parties agree that if the Revenue Fee is challenged by any one of them or a third party and set aside, the business must cease operations.
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b. Amount of Fee and Terms of Payment. The Revenue Fee shall be paid based upon the type of Commercial Marijuana Operations as follows;
c. Cultivation and Nurseries – The annual fee shall be based on a per square foot basis. This fee shall apply to cultivation and nurseries in industrial buildings as well as commercial green houses. The fee shall be ten dollars ($10.00) per square foot for the first two thousand five hundred (2,500) square feet and two dollars and fifty cents ($2.50) per square foot for the remaining space utilized in connection with each Commercial Marijuana Operation. The square footage calculation shall be determined by including all portions of the Premises under the control of the Business Owner and deducting there from driveways, sidewalks, landscaping, vacant unused space, areas used exclusively for office space, employee break rooms, restrooms, and storage space unrelated to the Commercial Marijuana Operation (such as a janitorial closet). The annual fee shall be paid quarterly with the first quarter payment due upon issuance of the Regulatory Permit. Thereafter payments shall be paid as follows; January 1st, April 1st, July 1st, and October 1st. If the City is closed due to a holiday or furlough on those dates the due date shall be the next business day or day the City is open. If more than one Commercial Marijuana Operation operates on the Premises, whether within a single building or multiple buildings, each Regulatory Permit holder shall be responsible for paying the Fee relative to their proportion of the business size per square foot.
b.d. All other uses including Processing, Extraction, Manufacturing, Testing, Distribution, and Transportation the annual fee shall be based on a per square foot basis. The fee shall be fifteen dollars ($10.00) per square foot for three thousand (3,000) square feet and two dollars and fifty cents ($2.50) per square foot for for the remaining space utilized in connection with each Commercial Marijuana Operation. The square footage calculation shall be determined by including all portions of the Premises under the control of the Business Owner and deducting there from driveways, sidewalks, landscaping, vacant unused space, areas used exclusively for office space, employee break rooms, restrooms, and storage space unrelated to the Commercial Marijuana Operation (such as a janitorial closet). The annual fee shall be paid quarterly with the first quarter payment due upon issuance of the Regulatory Permit. Thereafter payments shall be paid as follows; January 1st, April 1st, July 1st, and October 1st. If the City is closed due to a holiday or furlough on those dates the due date shall be the next business day or day the City is open. If more than one Commercial Marijuana Operation operates on the Premises, whether within a single building or multiple buildings, each Regulatory Permit holder shall be responsible for paying the Fee relative to their proportion of the business size per square foot. an annual fee of twenty-five ($25.00) per square foot for the first 3,000 square feet and ten dollars ($10.00) per square foot for the remaining space utilized in connection with each Commercial Marijuana Operation. The square footage calculation shall be determined by including all portions of the Premises under the control of the Business Owner and deducting therefrom driveways, sidewalks, landscaping, vacant unused space, areas used exclusively for office space, employee break rooms, restrooms, and storage space unrelated to the Commercial Marijuana Operation (such as a janitorial closet).
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Comment [AB34]: I disagree with this fee apply to non-canopy square footage as a policy decision.
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Comment [AB35]: It shall be paid 4 times a year? Or it will be paid in quarterly installments? If it is 4 times a year you will drive business out of Atwater. I would also make the payment of the fee a subsection.
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Should the City Council decide to allow for an integrated Dispensary or Retail Sales the following shall apply specifically to that component of the business; Amount of Fee and Terms of Payment. The Revenue Fee shall be an annual fee of $30.00, per $1,000.00, 3%, in gross receipts of the Business. If more than one Commercial Marijuana Operation operates on the Premises, whether within a single building or multiple buildings, each Regulatory Permit holder shall be responsible for paying the Fee. The Fee shall be payable (at the end of each fiscal quarter), in not less than quarterly installments, with the first quarterly payment due thirty (30) days after the end of the fiscal quarter Integrated Businesses – Permits shall pay the Revenue Fee in accordance with the proportion of the business use as indicated on the Regulatory Permit Application. In addition to the foregoing, for cultivation operations the total under canopy
square footage shall be included in the square footage calculation. If more than one Commercial Marijuana Operation operates on the Premises,
whether within a single building or multiple buildings, each Regulatory Permit holder shall be responsible for paying the Fee. The Fee shall be payable in advance, in not less than quarterly installments, with the first quarterly payment due prior to issuance of a certificate of occupancy. The first payment shall be prorated so that future payments coincide with calendar year quarters, but in no event shall the first payment be less than the equivalent of one full quarterly payment. Except for the first quarterly payment, all quarterly payments shall be received by the City before the end of the quarter.
c.e. Alternative Voter Approved Tax. If the voters of the City approve a
tax rate which is equivalent to the Revenue Fee, the Business Owner shall pay the tax in lieu of the Revenue Fee, or portion thereof, once the City begins to collect the tax revenue. In no event shall the Business Owner be required to pay more than the Revenue Fee. The following Sections are only needed should the City Council decide to allow for integrated businesses with a Dispensary – Retail Sales component. R. Record Keeping and Audits for Dispensary Component. The Responsible Party shall make and maintain complete, accurate and legible records of the permitted Marijuana Operations evidencing compliance with the requirements of this section. Those records shall be maintained for a minimum of five (5) years. For integrated businesses which include a Dispensary Component the following Audit and Reporting requirements shall apply;
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Comment [AB36]: I assume this is an alternative fee plan and not contemplated as an additional fee. Is that correct?
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1. Each Commercial marijuana operator shall file quarterly with the City a statement, under oath, showing the true and correct amount of gross revenue derived from the Commercial Marijuana Operation in the preceding applicable time period. At the option of the City, the City may require payment of gross revenue tax revenues through electronic transfer on a more frequent basis. Such statement shall be accompanied by the payment of the correct amount of gross revenue license tax due and owing. A signed certification shall be attached to the statement. 2. Each Commercial Marijuana Operator subject to the audit/reporting requirements under this section shall be responsible for the direct costs to obtain the services of a certified public accountant.
3 The City reserves the right at the end of each permittee’s fiscal year, for the City shall employ at Commercial Marijuana Operator’s expense a recognized firm of certified public accountants as approved by the City to conduct an audit of permittee’s financial records in accordance with generally accepted auditing standards and any additional specifications for audit as identified in the rules and regulations as may be promulgated by the City Manager. 4. The audit shall conclude with the expression of the auditor’s opinion on the financial statements of the permittee’s operations in accordance with generally accepted accounting principles, and in compliance with the mandate of California Health and Safety Code Section 11362.765 subdivision (a). state law. The auditor shall express a separate opinion on the permittee’s gross revenues and related permit fees paid to the City for the period then ended. Also, the Commercial Marijuana Operator shall provide the City with an annual update of the evaluation of its internal accounting and administrative controls. Such audit report shall be filed with the City Administrative Services Director no later than 90 days after the permittee’s fiscal year end. In the event that such evaluation discloses material weaknesses or reportable conditions, including, but not limited to, qualified or adverse auditor’s opinions, or discrepancies or deficiencies in the Commercial Marijuana Operator’s system of internal accounting and administrative controls, the Commercial Marijuana Operator shall submit a program to the City Manager within 30 days of such evaluation outlining the Commercial Marijuana Operator’s program and target dates to correct such weaknesses or conditions. The program and target dates shall be subject to approval, modification or denial in the sole discretion of the City Manager, and, in the event of modification or denial, the Commercial Marijuana Operator shall submit within 14 days of receipt of the City Manager’s modification or denial, a revised program and target dates to correct such weaknesses or conditions. Such revised program and target dates shall be subject to approval or modification in the sole discretion of the City Manager, and in the event of modification, the Commercial Marijuana Operator shall conform with the modified requirements of the program. Failure to correct the weaknesses or conditions within the time periods specified in the approved or
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Comment [AB37]: I assume this is referencing the “for profit” portion of the law. This restriction will be removed from state licensing and preventing cannabis operators from making a profit when the rest of the state will allow it will not encourage dispensary operation in Atwater.
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modified program may be grounds for suspension and/or revocation of the regulatory permit. All reports or evaluations submitted hereunder shall be confidential and shall not be available for public inspection. 5. Any failure or refusal of any such permittee to make any statement as required within the time required, or to pay such sums due as fees or gross revenue regulatory license tax when the same are due and payable in accordance with the provisions of this chapter, shall be and constitute full and sufficient grounds for the revocation or suspension of the permits issued pursuant to this chapter in the sole discretion of the Chief of Police. 6. Notwithstanding the audit requirements specified in this chapter, and in compliance with all State and Federal privacy laws the Commercial Marijuana Operator shall allow the Chief of Police or a designee unrestricted access to all books, records, facilities, and all audio and video tapes pertaining to the facilities. Any information obtained pursuant to this section or any statement filed by the Commercial Marijuana Operator shall be deemed confidential in character and shall not be subject to public inspection except in connection with the enforcement of the provisions of this chapter or as otherwise required by law. It shall be the duty of the Chief of Police to preserve and keep such statements so that the contents thereof shall not become known except to the persons charged by law with the administration of the provisions of this chapter or pursuant to the order of any court of competent jurisdiction. 7. Any failure or refusal of any Commercial Marijuana Operator to make and file any statement within the time required, or to permit inspection of such books, records, accounts and reports of such Commercial Marijuana Operator in accordance with the provisions of this chapter shall be full and sufficient grounds for the revocation or suspension of the regulatory license in the sole discretion of the Chief of Police. 8. A Commercial Marijuana Operation shall maintain records at the location accurately and truthfully documenting: a. The full name, address, and telephone number(s) of the owner, landlord and/or lessee of the location; b. The full name, address, and telephone number(s) of all owners, employees, and members who are engaged in the management of the business and the exact nature of each person’ s participation in the management of the business; c. The full name, address, and telephone number(s) of all patient members or entities to whom the Commercial Marijuana Operation provides marijuana, a copy of a government-issued identification card for all patient members, and a copy of every attending physician’s or doctor’s recommendation or patient identification card;
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d. The full name, address, and telephone number(s) of all primary caregiver members or entities to whom the Commercial Marijuana Operation provides cannabis and a copy of every written designation(s) by the primary caregiver’s qualified patient(s) or the primary caregiver’s identification card; e. All receipts of the Commercial Marijuana Operation, including, but not limited to, all contributions, reimbursements, and reasonable compensation, whether in cash or in kind, and all expenditures incurred by the Commercial Marijuana Operation for the cultivation of cannabis; f. An inventory record documenting the dates, amounts, and content testing results of all marijuana cultivated by Commercial Marijuana Operation, including the amounts of cannabis stored at the location at any given time; g. A log documenting each transfer of cannabis reflecting the amount transferred, the date transferred, and the full name of the person or entity to whom it was transferred and any payment received; h. A log documenting each transfer of cannabis in any form reflecting the amount transferred, the date delivered, and the full name of the person or entity whom transferred it to the Dispensary for the commercial marijuana operation and any amounts paid; i. Name, address and medical license numbers of all physicians who have given a cannabis recommendation to a qualified patient. j. Each Commercial Marijuana Operation shall verify the validity of the doctor making a cannabis recommendation. This verification will be by checking via the Internet with the State of California’s Medical Board of California Physician License Lookup System. The verification will also consist of calling each doctor to verify the cannabis recommendation. 9. These records shall be maintained by the Commercial Marijuana Operation for a period of five (5) years and shall be made available by the Commercial Marijuana Operation to the Police Department upon request, except the private patient records shall be made available by the business to the Police Department only pursuant to a properly executed search warrant, or court order. In addition to all other formats that the Commercial Marijuana Operation may maintain, these records shall be stored by the Commercial Marijuana Operation at the location in a printed format. Any loss, damage or destruction of the records shall be reported to the Police Department within 24 hours of the loss, destruction or damage. 10. In addition to the keeping of a permanent record as herein provided, every Commercial Marijuana Operation shall likewise be required to deliver to the Chief of Police, via electronic format and written format, a quarterly written
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Comment [AB38]: This makes sense when limiting profit, but that won’t be needed after state licensing.
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report which shall include all records described above. Said quarterly reports shall be received by the Chief of Police or designee no later than the first of every January, April, July, and October. Said records shall include all transactions up to 10 days prior to the required submission date. If the first day of any quarter falls on a non-City business day then the records shall be due the first available City business day.
T. U.S. Inspection. Marijuana Operations shall be open for inspection by any City law enforcement officer, or City code enforcement, Fire Department Representative, or Building & Safety Inspector officer at any time the Marijuana Operation is operating, at any other time upon responding to a call for service related to the property where the Marijuana Operations is occurring, or otherwise upon reasonable notice. Recordings made by security cameras at any Marijuana Operation shall be made immediately available to the Police Chief upon verbal request. No search warrant or subpoena shall be needed to view the recorded materials. All premises shall also be subject to annual random inspections.
V.T. Indemnification. In authorizing Commercial Marijuana Operations under this section, the City makes no guarantees or promises as to the lawfulness of the approved activity under State or Federal law, and the Business Owner, Operator and all Responsible Parties are obligated to comply with all applicable laws. To the fullest extent permitted by law, the City shall not assume any liability whatsoever with respect to the adoption of this Ordinance or the operation of any Commercial Marijuana Operation approved pursuant to this Ordinance or under State or Federal law. The Business Owner, Operator and all Responsible Parties shall defend, hold harmless, release, and indemnify the City, its agents, officers, and employees, from any liability associated with the approved use or adverse determinations made by the State or Federal government. An adverse determination could include cessation of operations.
The Business Owner agrees to reimburse the City for any court costs and attorney’s fees that the City may be required to pay as a result of any legal challenge related to Commercial Marijuana Operations operating under the authority of this Ordinance. The City may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the permittee of its obligations hereunder.
If requested by the City Attorney, the Business Owner shall execute an
agreement memorializing the requirements of this subsection.
W.U. Insurance. The Business Owner shall at all times carry a comprehensive general liability policy in the minimum amount of One Million Dollars ($1,000,000) combined single limit policy, as shall protect the Business Owner and City from claims for such damages, and which policy shall be issued by an “A” rated insurance carrier. Such policy or policies shall be written on an occurrence form. The City Manager, in consultation with City’s Risk Manager, may allow the Business Owner to obtain lesser amounts of insurance where multiple Business Owners are operating on the Premises,
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Comment [AB39]: I would add a “during regular operating hours” so that the random inspection can’t be at 3 in the morning.
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Comment [AB40]: This will limit what operators will be able to operate within the City of Atwater.
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Ordinance No. CS Page 37
provided at all times the minimum insurance set forth herein is applicable to the Marijuana Operations.
The Business Owner shall furnish a notarized certificate of insurance countersigned by an authorized agent of the insurance carrier on a form approved by City setting forth the general provisions of the insurance coverage. This countersigned certificate shall name City and its respective officers, agents, employees, and volunteers, as additionally insured parties under the policy, and the certificate shall be accompanied by a duly executed endorsement evidencing such additional insured status. The certificate and endorsement by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination.
Coverage provided hereunder by the Business Owner shall be primary insurance and shall not be contributing with any insurance maintained by City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of the City.
X.V. Violations: Enforcement.
1. Any person that violates any provision of this section shall be guilty of a separate offense for each and every day during any portion of which any such person commits, continues, permits, or causes a violation thereof, and shall be penalized accordingly.
2. Any use or condition caused or permitted to exist in violation of any of the
provisions of this section shall be and is hereby declared a public nuisance and may be summarily abated by the City pursuant to the City of Atwater Municipal Code.
3. Any person who violates, causes, or permits another person to violate any
provision of this section commits a misdemeanor. 4. The violation of any provision of this section shall be and is hereby
declared to be contrary to the public interest and shall, at the discretion of City, create a cause of action for injunctive relief.
5. In addition to the civil remedies and criminal penalties set forth above, any
person that violates the provisions of this section may be subject to an administrative fine of up to one thousand dollars ($1,000.00) for each violation and for each day the violation continues to persist. If not paid the City shall take such actions as necessary to collect the fine including but not limited to property leins, tax leins, and adding penalties to City utility bills.
Y.W. Severability. The provisions of this section are hereby declared to be severable. If any provision, clause, word, sentence, or paragraph of this section or of the Regulatory Permit issued pursuant to this section, or the application thereof to any
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Comment [AB41]: I assume this is also after the proper nuisance process and not just that having your insurance lapse is a misdemeanor.
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person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this section. Z.X. Judicial review. Judicial review of a decision made under this section or any actions taken pursuant to this section, may be had by filing a petition for a writ of mandate with the superior court in accordance with the provisions of the California Code of Civil Procedure § 1094.5. Any such petition shall be filed within ninety (90) days after the day the decision becomes final as provided in California Code of Civil Procedure § 1094.6, which shall be applicable for such actions. SECTION 6. SEVERABILITY: If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. This City Council declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the ordinance be enforced. SECTION 7. EFFECTIVE DATE: This ordinance shall take effect and be in force thirty (30) days after the date of its passage and the City Clerk shall certify to the adoption of this ordinance and shall cause the same to be published in the Atwater Signal within fifteen (15) days from the adoption hereof. INTRODUCED: ADOPTED: AYES: NOES: ABSENT: APPROVED:
________________________________ JAMES PRICE, MAYOR ATTEST:
________________________________ JEANNA DEL REALDON HYLER, CITY CLERK
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Scott McBride
From: Zach Drivon [[email protected]]Sent: Tuesday, April 18, 2017 3:57 PMTo: Scott McBrideSubject: Latest Draft Ordinance
Hi Scott, Just wanted to provide some feedback following my review of the latest Draft. Last week the State Governor’s office proposed recommendations for the reconciliation of MCRSA and AUMA. Some of the most potentially impactful terms were those that weighed in favor of operators being able to vertically integrate multiple businesses and license types into one consolidated entity. I believe that this policy recommendation will eventually carry the day, despite criticism from various industry interests. (Page 13 Section C) Under MCRSA, vertical integration is allowed only with a 10A license as Ashley pointed out in her notes. These licenses will be limited under MCRSA. These restrictions do not apply under AUMA (except for lab testing facilities required to be independently licensed). However, many industry insiders and advocates are of the opinion that in the event local licenses are obtained and regulatory compliance is maintained by the operator, the State will be obliged to issue licenses to local licensees as long as their operations comport with State Law. The City’s express intent to allow vertically integrated operation makes establishing operations in the City more attractive. I concur with Ashley’s recommendation that some language indicating that operators may hold 'more than one license in different license types (other than lab testing) to the extent it complies with applicable State Law' would be prudent. (Page 15-16 Section D 12. (j); (o)) Without understating the importance of necessary security measures, some of the requirements included may set an unnecessarily high bar which could prove to be cost prohibitive for some prospective operators. Specifically, the hardened bullet proof windows on the exterior of the facilities may impose a substantial cost with a limited benefit, if any. Further, while requiring 24 hour security patrols would be ideal, for individual operators, this could also be very expensive if individually borne by each operator. However, if multiple operators within a certain vicinity could share the cost of such patrols, or an alternative such as an 24 HR on-site security staff member monitoring surveillance with the ability to correspond with law enforcement were offered, I believe that the same objective could be achieved at a more reasonable cost. (Page 16 Section D 12 (q)) Another potential landmine for operators is the Electronic Track and Trace System to be approved by the Chief of Police. Currently, the State is working with service providers to adopt their own track and trace system and standards. In the event that independent track and trace systems are implemented in the city, the potential exists for such systems to be rendered obsolete, as State law will preempt local standards to the extent that they may be in conflict. Perhaps buffering this with implementation of the State’s track and trace system “once approved and available” would be a way to hedge. (Page 21 Section F 2) I would also recommend that the Police Chief or designee be required to notify applicants of incomplete or improper applications within 15 days of receipt (as opposed to 30). This would allow the application process and necessary edits to be expedited, and allow applicants to avoid the burden of carrying costs for extended periods prior to commencement of operations and generating of revenue.
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(Page 28-29 Section Q 3 (c) (d)) The most critical issue I identified was the timing of the collection of the initial quarterly tax payment for the square footage of all operations (except for potential vertically integrated dispensaries which would be taxed at a rate of 3% of gross revenues). Under the current draft, the City is requiring the 1st quarterly installment to be paid upon approval of the regulatory permit. Operators are anticipating application fees to be set at reasonably substantial amounts which will allow the city to facilitate the administration of the application process. All operators will be making tenant improvements to their structure and facility operations (including substantial and costly security infrastructure). Further, some applicants will be entering into purchase and sale and/or development agreements for bare land, and developing their facilities to accommodate large scale commercial operations with substantial square footage. This will require substantial capital expenditures as a necessary step toward the establishment of the facilities themselves. The scale of commercial indoor or mixed light cultivation operations combined with manufacturing facilities may exceed 30,000 sq. feet, the ordinance is currently requiring operators to pay upwards of $75,000.00-$100,000.00 in taxes prior to breaking ground to develop and/or improve of the facilities necessary to generate revenue. Given that the Chief of Police has discretion to impose additional security requirements prior to the commencement of operations, this means that the business would be taxed prior to potentially being made subject to unknown conditions. Given these circumstances I believe that although the tax rate is reasonable, the timing of the collection of the initial quarterly installment is untenable and may force operators to look elsewhere to establish their businesses. I would recommend that the ordinance be amended to require the first quarterly installment of the
square footage tax to be paid at the end of the first fiscal quarter following the commercial cannabis
operation commencing its operation-this would be the most reasonable and optimum alternative as it would allow the business to generate revenue before being taxed on its operation. Finally, I concur with the recommendation that driveways, sidewalks, landscaping, vacant unused space, office space, areas used exclusively for office space, employee break rooms, restrooms, and storage space unrelated to the commercial cannabis operation be deducted from the portion of the facilities subject to the square footage tax. All else considered, I believe the above can be feasibly addressed to meet the interest and necessities of the City, while also creating a viable process that would foster the establishment of successful and profitable businesses. Thanks for your consideration. -Zach Drivon
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