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Home My WebLink About2014-11-20 Council Agenda PacketThursday, November 20, 2014 1:00 PM City of Fresno 2600 Fresno Street Fresno, CA 93721 www.fresno.gov Council Chambers City Council Meeting Agenda - Final Regular Session November 20, 2014City Council Meeting Agenda - Final The meeting room is accessible to the physically disabled. If you require special assistance to participate in the meeting, notify the Office of the City Clerk at 559-621-7650 at least three business days prior to the meeting. Please keep the doorways, aisles and wheelchair seating areas open and accessible. If you need assistance with seating because of a disability, contact Security. The City Council welcomes you to the Council Chambers, located in City Hall, 2nd Floor, 2600 Fresno Street, Fresno CA 93721. The agenda and related staff reports are available on (www.fresno.gov) as well as in the Office of the City Clerk. The Council meeting can also be heard live at the same web site address, and viewed live on Comcast Channel 96 and AT&T Channel 99 from 8:30 a.m. and re-played beginning at 8:00 p.m. PROCESS: For each matter considered by the Council there will first be a staff presentation followed by a presentation from the involved individuals, if present. Testimony from those in attendance will then be taken. All testimony will be limited to three minutes per person. If you would like to speak fill out a Speaker Request Form available from the City Clerk’s Office and in the Council Chambers. The three lights on the podium next to the microphone will indicate the amount of time remaining for the speaker. The green light on the podium will be turned on when the speaker begins. The yellow light will come on with one minute remaining. The speaker should be completing the testimony by the time the red light comes on and tones sound, indicating that time has expired. A countdown of time remaining to speak is also displayed on the large screen behind the Council dais. No documents shall be accepted for Council review unless they are submitted to the City Clerk at least 24 hours prior to the Council Agenda item being heard. Following is a general schedule of items for Council consideration and action. The City Council may consider and act on an agenda item in any order it deems appropriate. Actual timed items may be heard later but not before the time set on agenda. Persons interested in an item listed on the agenda are advised to be present throughout the meeting to ensure their presence when the item is called. AGENDA ITEMS MARKED WITH AN ASTERISK (***) ARE SUBJECT TO MAYORAL VETO OR RECONSIDERATION Page 2 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final 1:13 P.M. ROLL CALL Councilmember Olivier was absent during the Roll Call but entered the Council Chamber at 1:21 P.M. Invocation by Pastor Bill Baird Pledge of Allegiance to the Flag CEREMONIAL PRESENTATIONS Proclamation of “NATIONAL RUNAWAY PREVENTION MONTH” ID#14-587 Sponsors:Baines III APPROVE MINUTES Approval of City Council minutes from November 6, 2014ID#14-586 COUNCILMEMBER REPORTS AND COMMENTS APPROVE AGENDA 1. CONSENT CALENDAR All Consent Calendar items are considered to be routine and will be treated as one agenda item. The Consent Calendar will be enacted by one motion. Public comment on the Consent Calendar is limited to three (3) minutes per speaker. There will be no separate discussion of these items unless requested by a Councilmember, in which event the item will be removed from the Consent Calendar and will be considered as time allows. RESOLUTION - Of Intention to annex Final Tract Map No. 6051, Annexation No. 59, to the City of Fresno Community Facilities District No. 11 (southeast corner of N. Garfield and W. Barstow Avenues); and setting the public hearing for December 18, 2014 at 2:00 P.M. (Council District 2) ID#14-5261-A Sponsors:Public Works Department Award two (2) collection agency contracts on behalf of all City of Fresno Departments to RSI Enterprises, Inc., and Financial Credit Network, Inc. ID#14-5301-B Page 3 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final Sponsors:Finance Department Actions pertaining to the 2014 Project Safe Neighborhoods (PSN) grant program 1.Authorize the Chief of Police to accept $450,000 in grant funding from the United States Department of Justice through the California Governor’s Office of Emergency Services (CalOES), execute the grant agreement with CalOES for the 2014 Project Safe Neighborhoods (PSN) grant program 2. ***RESOLUTION - 23rd amendment to the Annual Appropriation Resolution (AAR) No. 2014-95 appropriating $58,000 into the Police Department’s FY 2015 budget for the PSN grant program (Requires 5 affirmative votes) ID#14-5501-C Sponsors:Police Department Approve Master Agreement for inter-agency instructional services between Fresno City College and the City of Fresno Fire Department for reimbursement of instructional training hour costs ID#14-5511-D Sponsors:Fire Department Actions pertaining to a sale of a portion of excess property in the San Joaquin River bottom just east of Fig Garden Golf Course: 1. Adopt a finding of a categorical exemption pursuant to Class 1, Section 15301(c) (existing facilities) of the California Environmental Quality Act (“CEQA”) Guidelines 2. Authorize the City Manager or designee to execute a grant deed for the sale of a portion of excess property in the amount of $25,000.00 to Michael and Jeanne Adams located on the former Fresno Traction Company right of way, now known as River Bottom Road, just east of Fig Garden Golf Course in the San Joaquin River bottom APN 405-030-XR ID#14-5571-E Sponsors:Public Works Department Approve a consultant agreement in the amount of $88,930 with Architecture + History, LLC to conduct an intensive ID#14-5631-F Page 4 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final historic survey of Phase I of the South Van Ness Industrial District and authorize the Director of the Development and Resource Management Department or her designee to sign on behalf of the City (Council District 3) Sponsors:Planning and Development Department Approve the reappointments of Richard Keyes, Keith Lovgren, Aric Olson, Tom Richards and Lydia Zabrycki to the Fresno Regional Workforce Investment Board; the appointment of Cary Catalano to the Planning Commission - Mayor’s Office; the appointment of Jasdeep Sidhu to the District 1 Plan Implementation Committee - Councilmember Xiong; the reappointment of Nicholas Don Paladino to the Bicycle and Pedestrian Advisory Committee - Councilmember Brand; and the appointments of Wanda Hemmitt and Barigye McCoy to the District 3 Plan Implementation Committee - Acting President Baines ID#14-5651-G Sponsors:Mayor's Office and City Council Approve amendment to the contract with Electrical Power System, Inc., for electrical engineering and design consulting services ID#14-5691-H Sponsors:Department of Transportation Actions pertaining to On-Airport Ground Lease Agreement at Fresno Yosemite International Airport (Council District 4) 1.Adopt a finding of Categorical Exemption pursuant to Article 19, Section 15303(c) (New Construction) of the California Environmental Quality Act (CEQA) Guidelines to authorize a ground lease agreement between the City of Fresno and ROAM, a General Partnership between AMERICAN AIRBORNE, EMS, a California Corporation; and ROGERS HELICOPTERS, INC., a California Corporation, also known as SkyLife (“SkyLife”) at Fresno Yosemite International Airport (FAT) 2.Approve a ground lease for an Administration and Operations Facility at Fresno Yosemite International Airport between the City of Fresno and SkyLife ID#14-5751-I Page 5 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final Sponsors:Airports Department Actions pertaining to an Airport Hangar Lease at Fresno Chandler Executive Airport (Council District 3) 1.Adopt a finding of Categorical Exemption pursuant to Article 19, Section 15301(a) and (d)/Class 1 (Existing Facilities) of the California Environmental Quality Act (CEQA) Guidelines to authorize Lease Amendment No. 1 between the City of Fresno and Frank X. Ruiz Avionics, Inc., at Fresno Chandler Executive Airport (FCH) 2.Approve Lease Amendment No. 1 between the City of Fresno and Frank X. Ruiz Avionics, Inc. ID#14-5771-J Sponsors:Airports Department RESOLUTION - Approving the Final Map of Tract No. 6045 and accepting dedicated public uses offered therein -between N. Friant Road and E. Copper Avenue with the Copper River Ranch Master Planned Community (Council District 6) ID#14-5851-K Sponsors:Public Works Department ***BILL NO. B-50 - (Intro. 11/6/2014) (For adoption) - Repealing Section 4-111 of the Fresno Municipal Code and adding Section 4-111 to the Fresno Municipal Code relating to Project Labor Agreements ID#14-5621-L Sponsors:Council President Brandau ***BILL NO. B-49 - (Intro. 11/6/2014) (For adoption) - Amending Section 4-401 of the Fresno Municipal Code and repealing Sections 4-402, 4-403 and 4-404 of the Fresno Municipal Code relating to prevailing wages for public works ID#14-5681-M Sponsors:Council President Brandau CONTESTED CONSENT CALENDAR 2. GENERAL ADMINISTRATION Claim $18,497.13 in funds for uncashed checks dated January 5, 2010 through December 27, 2010 and one ID#14-4992-A Page 6 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final bond deposit dating from 2003, and transfer said funds from the “Special Fund” 63539 to the General Fund 10101 1.RESOLUTION - Claiming funds for stale-dated (uncashed) checks dated January 5, 2010 through December 27, 2010 and one bond deposit from 2003 and transferring said funds from the special unclaimed funds - Fund 63539 to the General Fund 10101 Sponsors:Finance Department Appoint and authorize certain Finance Officers of the City of Fresno (“City”) to sign City checks and various investment and commercial banking documents, and to provide verbal instruction required for the prudent financial administration and safekeeping of City funds 1.RESOLUTION - Authorizing certain Finance Officers of the City of Fresno to sign City checks and various investment and commercial banking documents and to provide verbal instruction required for the prudent financial administration and safekeeping of City funds ID#14-5002-B Sponsors:Finance Department Approve the City of Fresno (the “City”) Investment Policy for Fiscal Year 2014-2015 1.***RESOLUTION - Adopting an investment policy for public funds for fiscal year 2014-2015 ID#14-5062-C Sponsors:Finance Department Actions pertaining to Copper Avenue Trail from Friant Road to Cedar Avenue, Bid File No. 3248 (Council District 6) 1.Adopt an addendum to the 2002 Copper River Ranch Program EIR No. 10126 (SCH2000021) pursuant to Sections 15162 and 15164 of the CEQA Guidelines, for the Copper Avenue Trail project from Friant Road to Cedar Avenue 2. Award a construction contract to Yarbs Grading and Paving, Inc. of Fowler, California in the amount of $589,622 for the construction of Copper Avenue Trail from Friant Road to Cedar Avenue ID#14-5722-D Page 7 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final Sponsors:Public Works Department ***RESOLUTION -- Amend the City’s Water Shortage Contingency Plan to allow outdoor watering one-day per week during the winter season (December 1 to March 1) ID#14-5992-E Sponsors:Department of Public Utilities 3. CITY COUNCIL Discussion and appointment of a City Council Sub-Committee on Transportation ID#14-607 Sponsors:Baines III 4. CLOSED SESSION The City Council met in closed session in Room 2125 from 1:52 P.M. to 3:05 P.M. to discuss the following: CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION - Government Code Section 54956.9, subdivision (d)(1) Case Name: Carlton Jones v. City of Fresno; Fresno County Superior Court Case No. 12CECG03049 ID#14-566 Sponsors:City Attorney's Office CONFERENCE WITH REAL PROPERTY NEGOTIATOR - Government Code Section 54956.8 Property: APNs 472-021-58T, 472-021-60T, 472-021-61T (5100 block of East Kings Canyon Road) Negotiating Parties: City Manager Bruce Rudd; Cesar Chavez Foundation, a California nonprofit public benefit corporation ID#14-595 JOINT CLOSED SESSION OF THE CITY OF FRESNO AND THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO AND FRESNO REVITALIZATION CORPORATION CONFERENCE WITH REAL PROPERTY NEGOTIATOR - Government Code Section 54956.8 Property: APN 466-214-17T (Kidney Lot); Remnant Parcel located between H Street, Broadway, and Fresno Streets, and Merced Mall ID#14-596 Page 8 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final Negotiating Parties: City Manager Bruce Rudd; Executive Director Marlene Murphey; APEC International, LLC CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION - Government Code Section 54956.9, Subdivision (d)(1) City of Fresno v. Raps Fresno, LLC., et al. (Hotel Fresno); Superior Court Case No. 05CECG01744MS ID#14-597 5. SCHEDULED COUNCIL HEARINGS AND MATTERS 10:00 A.M.#1 (CONTINUE TO 3:00 P.M. #1) JOINT MEETING WITH THE JOINT POWERS FINANCING AUTHORITY Members: Mayor Swearengin, Council President Brandau and Acting President Baines Consent to and authorization of the investment of monies in the Local Agency Investment Fund (“LAIF”) in the custody of the State Treasurer for purposes of investment and authorize certain Finance Officers in connection therewith (Council action) 1.RESOLUTION - Consenting to and authorizing investment of monies in the Local Agency Investment Fund (“LAIF”) in the custody of the State Treasurer for purposes of investment, and authorizing certain Finance Officers in connection therewith (Council action) ID#14-501 Sponsors:Finance Department Authorize advances of money to the Joint Powers Financing Authority (the “JPFA”) for investment with the Local Agency Investment Fund (the “LAIF”) and accept a Demand Promissory Note from the JPFA evidencing those advances (Council action) 1.RESOLUTION - Authorizing advances to the Joint Powers Financing Authority for investment with the Local Agency Investment Fund, and approving a promissory note from the Fresno Joint Powers Financing authority (Council action) ID#14-504 Sponsors:Finance Department Page 9 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final 10:00 A.M. #2 (CONTINUE TO 3:00 P.M. #2) HEARING to adopt resolutions and ordinance to annex territory and levy a special tax regarding City of Fresno Community District No. 11, Annexation No. 57 (Final Tract Map No. 5967) (East side of N. Polk Avenue between W. Shaw and Gettysburg Avenue) (Council District 1) 1.RESOLUTION - Annexing Territory to Community Facilities District No. 11 and authorizing the levy of a special tax 2.RESOLUTION - Calling special mailed-ballot election 3.RESOLUTION - Declaring election results 4.***BILL - (For introduction and adoption) - Levying a special tax for the property tax year 2014-2015 and future tax years within and relating to Community Facilities District No. 11, Annexation No. 57, Final Tract Map No. 5967 ID#14-544 Sponsors:Public Works Department 10:00 A.M.#3 (CONTINUE TO 3:30 P.M.) PUBLIC MEETING concerning the renewal of the Fresno-Clovis Tourism Business Improvement District ID#14-570 Sponsors:Office of Mayor & City Manager 10:15 A.M. SCHEDULED COMMUNICATION (CONTINUE TO 3:45 P.M.) JOINT MEETING OF THE CITY OF FRESNO, THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, AND THE FRESNO REVITALIZATION CORPORATION The City Council met in joint session with the Successor Agency to the Redevelopment Agency of the City of Fresno and Fresno Revitalization Corporation at 3:19 P.M. to discuss the following: Successor Agency to the Redevelopment Agency consider adopting and approving: 1.Adopt finding of Categorical Exemption pursuant to Section 15301/Class 1 of the CEQA Guidelines (no change in existing use) (Successor Agency Action) 2.Approve Purchase and Sale Agreement between the ID#14-590 Page 10 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final Successor Agency to the Redevelopment Agency of the City of Fresno and Mathews Harley-Davidson, Inc. for the Sale of Certain Former Redevelopment Agency Parcels located at the northwest corner of Abby and Belmont Avenues (APNs 452-301-25T, -26T, -27T & -30T) within the City of Fresno (Successor Agency Action) Approve First Amendment to Agreement for Disposal and Sale of Property to Moose Family Center #445 at 5025 E. Dakota (APN 493-020-29ST) (Successor Agency action) ID#14-592 Actions pertaining to Owner Participation Agreement: 1.Invoke Exception to Better Business Act (Requires 5 affirmative votes) 2.Approve Restated and Amended Owner Participation Agreement (OPA) between the Housing Successor of the City of Fresno and Apec LLC International for the rehabilitation of 1241 Broadway Plaza (APN 466-214-01) (City action) ID#14-593 Approve Purchase and Sale Agreement between the Successor Agency to the Redevelopment Agency of the City of Fresno and APEC International, LLC., for the Sale of Certain Former Redevelopment Agency Property located near the northwest corner of Fresno and H Streets (APN 466-214-17T) within the City of Fresno (Successor Agency Action) ID#14-594 ADJOURN AGENCY 11:00 A.M. (CONTINUE TO 4:00 P.M.) HEARING to consider Plan Amendment Application No. A-13-009, Rezone Application No. R-13-016, and related environmental assessment for the property located on the east side of N. Locan Avenue between the E. Dakota alignment and E. Shields Avenue (Council District 4) Development and Resource Management Department a.Consider the environmental finding of Environmental Assessment No. A-13-009/R-13-016/TM-6067, a finding of a Mitigated Negative Declaration, dated October 17, ID#14-584 Page 11 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final 2014 b.RESOLUTION - Approving Plan Amendment Application No. A-13-009 amending the 2025 Fresno General Plan and Roosevelt Community Plan planned land use designation for ± 24.71 acres from the agricultural designation in the County of Fresno to the Medium Low Density Residential planned land use designation in the City of Fresno c.BILL - (For introduction and adoption) - Amending the Official Zone Map to reclassify ± 24.71 acres from the AE- 20 (Exclusive Twenty-Acre Agricultural, Fresno County) to R-1/cz (Single Family Residential/conditions of zoning, Fresno City) zone district 3:00 P.M. #1 JOINT MEETING WITH THE JOINT POWERS FINANCING AUTHORITY As noted by City Clerk Spence, the 3:00 P.M. #1 items (File ID#'s 14-501 and 14-504) were strictly Council Actions and a would not be heard as a joint meeting. Members: Mayor Swearengin, Council President Brandau and Acting President Consent to and authorization of the investment of monies in the Local Agency Investment Fund (“LAIF”) in the custody of the State Treasurer for purposes of investment and authorize certain Finance Officers in connection therewith (Council action) 1.RESOLUTION - Consenting to and authorizing investment of monies in the Local Agency Investment Fund (“LAIF”) in the custody of the State Treasurer for purposes of investment, and authorizing certain Finance Officers in connection therewith (Council action) ID#14-501 Sponsors:Finance Department Authorize advances of money to the Joint Powers Financing Authority (the “JPFA”) for investment with the Local Agency Investment Fund (the “LAIF”) and accept a Demand Promissory Note from the JPFA evidencing those advances (Council action) 1.RESOLUTION - Authorizing advances to the Joint Powers ID#14-504 Page 12 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final Financing Authority for investment with the Local Agency Investment Fund, and approving a promissory note from the Fresno Joint Powers Financing authority (Council action) Sponsors:Finance Department ADJOURN AUTHORITY 3:00 P.M.#2 (CONTINUED FROM 10:00 A.M.) HEARING to adopt resolutions and ordinance to annex territory and levy a special tax regarding City of Fresno Community District No. 11, Annexation No. 57 (Final Tract Map No. 5967) (East side of N. Polk Avenue between W. Shaw and Gettysburg Avenue) (Council District 1) 1.RESOLUTION - Annexing Territory to Community Facilities District No. 11 and authorizing the levy of a special tax 2.RESOLUTION - Calling special mailed-ballot election 3.RESOLUTION - Declaring election results 4.***BILL - (For introduction and adoption) - Levying a special tax for the property tax year 2014-2015 and future tax years within and relating to Community Facilities District No. 11, Annexation No. 57, Final Tract Map No. 5967 ID#14-544 Sponsors:Public Works Department 3:30 P.M. PUBLIC MEETING concerning the renewal of the Fresno-Clovis Tourism Business Improvement District ID#14-570 Sponsors:Office of Mayor & City Manager 3:45 P.M. SCHEDULED COMMUNICATION Appearance by George Aguilar, Al Makkai, Juan Bejar and Mario Soto to discuss the operation of the transportation company UBERX and why the company is not subject to the City of Fresno’s taxi regulations ID#14-567 Appearance by Parvis Laghaifar to discuss who is responsible for the expenses of moving a signal light at ID#14-582 Page 13 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final the corner of Shaw and Polk 4:00 P.M. (CONTINUED FROM 11:00 A.M.) HEARING to consider Plan Amendment Application No. A-13-009, Rezone Application No. R-13-016, and related environmental assessment for the property located on the east side of N. Locan Avenue between the E. Dakota alignment and E. Shields Avenue (Council District 4) Development and Resource Management Department a.Consider the environmental finding of Environmental Assessment No. A-13-009/R-13-016/TM-6067, a finding of a Mitigated Negative Declaration, dated October 17, 2014 b.RESOLUTION - Approving Plan Amendment Application No. A-13-009 amending the 2025 Fresno General Plan and Roosevelt Community Plan planned land use designation for ± 24.71 acres from the agricultural designation in the County of Fresno to the Medium Low Density Residential planned land use designation in the City of Fresno c.BILL - (For introduction and adoption) - Amending the Official Zone Map to reclassify ± 24.71 acres from the AE- 20 (Exclusive Twenty-Acre Agricultural, Fresno County) to R-1/cz (Single Family Residential/conditions of zoning, Fresno City) zone district ID#14-584 5:00 P.M. Receive report of findings and summary of discussions from the Recharge Fresno Community Forums and direct City staff to initiate the Proposition 218 hearing process for proposed changes to the schedule of rates, fees, and charges for public water service and setting the public hearing for February 5, 2015, at 5:00 p.m. ID#14-561 Sponsors:Department of Public Utilities PLEASE NOTE: UNSCHEDULED COMMUNICATIONS IS NOT SCHEDULED FOR A SPECIFIC TIME AND MAY BE HEARD ANY TIME DURING THE MEETING UNSCHEDULED COMMUNICATION Page 14 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final Members of the public may address the Council regarding items that are not listed on the agenda and within the subject matter jurisdiction of the Council. Each person is limited to a three (3) minute presentation. Anyone wishing to be placed on an agenda for a specified topic should contact the City Clerk’s Office at least ten (10) days prior to the desired date. Council action on unscheduled items, if any, shall be limited to referring the item to staff for a report and possible scheduling on a future Council agenda. ADJOURNMENT UPCOMING SCHEDULED COUNCIL HEARINGS AND MATTERS DECEMBER 4 10:00 A.M #1 WORKSHOP relating to Fresno Unified School District presented by Michael Hansen DECEMBER 4 10:00 A.M.#2 HEARING to consider a Resolution of Public Use and Necessity requiring acquisition of permanent street easements and rights-of-way for public street purposes over, under, through and across real property owned by Forest Sunrise, LLC, (APN 496-192-10s) for intersection improvements at Shields Avenue and Fowler Avenue in the City of Fresno DECEMBER 4 (TBA) WORKSHOP relating to the General Plan DECEMBER 11 11:00 A.M. WORKSHOP relating to Central Unfied School District presented by Mike Berg DECEMBER 11 5:00 P.M HEARING relating to the General Plan DECEMBER 18 2:00 P.M #1. HEARING re:Final Tract Map No. 6051 annexed to CFD No. 11 (southeast corner of N. Garfield and W. Barstow Avenues) (Council District 2) DECEMBER 18 2:00 P.M #2. HEARING approving the renewal of the Fresno-Clovis Tourism Page 15 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final Business Improvment Distridct (TBID) DECEMBER 18 5:00 P.M. Consideration of the General Plan JANUARY 29, 2015 10:00 AM HEARING re: Annexation No. 29 of the City of Fresno Community District No. 11, Final Tract Map No. 5626, to revise the rate and method of apportionment of the special tax and to levy a new maximum special tax (southeast corner of North Fowler and East Hamilton Avenues) (Council District 5) FEBRUARY 5, 2015 5:00 P.M. HEARING re: proposed increase of water utility rates UPCOMING EMPLOYEE CEREMONIES JANUARY 29, 2015 8:30 A.M. Presentation of Employee of the Quarter Awards (Reception immediately following - 2nd floor foyer) APRIL 8, 2015 (Weds.) 2:00 P.M. Presentation of Employee Service Awards (Reception immediately following - 2nd floor foyer) APRIL 30, 2015 8:30 A.M. Presentation of Employee of the Quarter Awards (Reception immediately following - 2nd floor foyer) JULY 16, 2015 8:30 A.M. Presentation of Employee of the Quarter Awards (Reception immediately following - 2nd floor foyer) OCTOBER 1, 2015 8:30 A.M. Presentation of Employee of the Quarter Awards (Reception immediately following - 2nd floor foyer) OCTOBER 21, 2015 (Weds.) 2:00 P.M. Presentation of Employee Service Awards (Reception immediately following - 2nd floor foyer) 2014 CITY COUNCIL MEETING SCHEDULE NOVEMBER 27 - NO MEETING - THANKSGIVING WEEK DECEMBER 4 - 8:30 A.M. Page 16 City of Fresno ***Subject to Mayoral Veto November 20, 2014City Council Meeting Agenda - Final DECEMBER 11 - 8:30 A.M DECEMBER 18 - 1:30 P.M. DECEMBER 25 - NO MEETING - CHRISTMAS WEEK JANUARY 1 2015 - NO MEETING JANUARY 8 2015 - 8:30 A.M. JANUARY 15 2015 - 1:30 P.M. JANUARY 22 2015 - NO MEETING JANUARY 29 2015 - 8:30 A.M. Page 17 City of Fresno ***Subject to Mayoral Veto City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-587 Agenda Date:11/20/2014 Agenda #: CEREMONIAL PRESENTATION Proclamation of “NATIONAL RUNAWAY PREVENTION MONTH” City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-586 Agenda Date:11/20/2014 Agenda #: CITY COUNCIL MINUTES FOR APPROVAL Approval of City Council minutes from November 6, 2014 City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ 2600 Fresno Street Fresno, CA 93721 www.fresno.gov City of Fresno Meeting Minutes - Draft City Council Council President - Steve Brandau Acting President - Oliver Baines, III Councilmembers: Lee Brand, Paul Caprioglio, Clinton J. Olivier, Sal Quintero, Blong Xiong City Manager - Bruce Rudd City Attorney - Douglas T. Sloan City Clerk - Yvonne Spence, CMC 8:30 AM Council ChambersThursday, November 6, 2014 Regular Session The City Council met in regular session at the hour of 8:30 A.M. in the Council Chamber, City Hall, on the day above written. 8:44 A.M. ROLL CALL Council President Steve Brandau Acting Council President Oliver Baines Councilmember Lee Brand Councilmember Paul Caprioglio Councilmember Clinton Olivier Councilmember Sal Quintero Councilmember Blong Xiong Present:7 - Invocation by District 4 The invocation was performed by Facilities Manager Mark Johnson. Pledge of Allegiance to the Flag CEREMONIAL PRESENTATIONS Presentation of the SPCA Pet of the Month - Councilmember Quintero PRESENTED Councilmember Brand entered the Council chamber at 8:50 A.M. City of Fresno *Subject to mayoral veto Page 1 November 6, 2014City Council Meeting Minutes - Draft ID#14-546 Proclamation of “SUPREME COURT JUSTICE MARVIN BAXTER DAY” Sponsors:City Councilmember Quintero PRESENTED ID#14-560 Proclamation of “JENNIFER LIPP DAY” Sponsors:City Councilmember Olivier PRESENTED APPROVE MINUTES ID#14-586 Approval of City Council minutes from November 6, 2014 On motion of Councilmember Xiong, seconded by Councilmember Caprioglio, the above Minutes were approved. The motion carried by the following vote: Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and Xiong 7 - ID#14-556 Approval of Successor Agency minutes from October 30, 2014 and Fresno Revitalization Corporation minutes from October 30, 2014. Sponsors:City Clerk's Office On motion of Councilmember Caprioglio, seconded by Councilmember Olivier, the above Successor Agency and Fresno Revitalization Minutes were approved. The motion carried by the following vote: Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and Xiong 7 - Councilmember Brand exited the Council Chamber at 9:05 A.M. and returned at 9:10 A.M. COUNCILMEMBER REPORTS AND COMMENTS Councilmember Caprioglio acknowledged the Muslim Society of Central California for taking the time, twice a year, to provide free medical services at Manchester Shopping Center. Councilmember Caprioglio attended on Saturday and estimated that between 700 and 725 men, women and children were taking advantage of the free services that included eye exams, lab work, dental work, evaluations and obesity information. Councilmember Caprioglio thanked the Muslim Society of Central California for its generosity. City of Fresno *Subject to mayoral veto Page 2 November 6, 2014City Council Meeting Minutes - Draft President Brandau reported that he was in a meeting with City Administration and worked out solutions to boost the number of Police Officers to the levels agreed upon in June. Councilmember Xiong asked City Manager Rudd for a follow up report regarding the street light issue around Fresno High School. City Manager Rudd stated he would follow up after his 1:00 P.M. meeting on the issue with with Public Works. APPROVE AGENDA City Clerk Spence announced the following changes to the agenda: General Administration item 2-A (File ID# 14-341) regarding a parking permit agreement with the Housing Authority was removed from the agenda by staff; the 11:00 A.M. Scheduled Communication by Parvis Laghaifar (File ID# 14-542) was rescheduled by Mr. Laghaifar to November 20, 2014; the 10:45 A.M. Scheduled Matter (File ID# 14-540) to consider an appeal regarding Conditional Use Permit No. C-13-092 was removed from the agenda and would return in January 2015. APPROVED AS AMENDED On motion of Councilmember Olivier, seconded by Councilmember Caprioglio, the AGENDA was adopted with the changes read by City Clerk Spence. The motion carried by the following vote: Aye:Brandau, Baines, Caprioglio, Olivier, Quintero and Xiong6 - Absent:Brand1 - 1. CONSENT CALENDAR Councilmember Caprioglio moved Consent Calendar item 1B (File ID 14-527) to the Contested Consent Calendar for further discussion. CONSENT CALENDAR ADOPTED APPROVAL OF THE CONSENT CALENDAR On motion of Councilmember Caprioglio, seconded by Councilmember Xiong, the CONSENT CALENDAR was hereby adopted by the following vote: Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and Xiong 7 - City of Fresno *Subject to mayoral veto Page 3 November 6, 2014City Council Meeting Minutes - Draft ID#14-5231-A Authorize the City Manager or designee to execute a grant deed for the sale of excess property in the amount of $50,000 to Frank Stephen Lamarche located at 2748 E. Hamilton, Fresno APN 468-313-18T Sponsors:Public Works Department APPROVED The above item was approved on the Consent Calendar. ID#14-5271-B ***RESOLUTION - 521st amendment to the Master Fee Schedule (“MFS”) Resolution No. 80-420 to add, adjust, revise or delete various fees Sponsors:Finance Department The above item was moved to the Contested Consent Calendar by Councilmember Caprioglio for further discussion. ID#14-5541-C ***BILL NO. B-48 (Intro. 10/30/2014)(For adoption) - Amending Section 4-605 of the Fresno Municipal Code relating to regulation of communications during competitive procurement process Sponsors:City Councilmember Baines ORDINANCE 2014-49 ADOPTED The above item was adopted on the Consent Calendar. ID#14-5591-D Approve the appointment of Nicole Linder to the District 6 Plan Implementation Committee Sponsors:City Councilmember Brand APPROVED The above item was approved on the Consent Calendar. CONTESTED CONSENT CALENDAR ID#14-5271-B ***RESOLUTION - 521st amendment to the Master Fee Schedule (“MFS”) Resolution No. 80-420 to add, adjust, revise or delete various fees Sponsors:Finance Department The above item was introduced to Council by Aviation Director Meikle. Budget Manager Sumpter and Airways Golf Course General Manager Fansler answered additional questions. City of Fresno *Subject to mayoral veto Page 4 November 6, 2014City Council Meeting Minutes - Draft Budget Manager Sumpter read a correction into the record that added a footnote regarding the special pool rentals. The correction was as follows: "Insurance must be purchased from the City carrier." Councilmember Xiong instructed staff to come back after the changes were made for the purpose of evaluating the sustainability of Airways Golf Course under the changes. RESOLUTION 2014-180 ADOPTED On motion of Councilmember Caprioglio, seconded by Councilmember Xiong, the above item was adopted. The motion carried by the following vote: Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and Xiong 7 - 4. CLOSED SESSION The City Council met in closed session in Room 2125 from 9:24 A.M. to 9:51 A.M. to discuss the following: ID#14-5414-A CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION - Government Code Section 54956.9, subdivision (d)(2) Significant Exposure to Litigation: 1. Claim of Richard Smith Sponsors:City Attorney's Office The above item was discussed in closed session. No open session announcement was made regarding this item. ID#14-5524-B CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION - Government Code Section 54956.9, subdivision (d)(1) Case Name: City of El Centro, et al. v. David Lanier, in his official capacity as the Secretary of the State of California Labor & Workforce Development Agency, et al. San Diego County Superior Court Case No. 37-2014-00003824- CU-WM-CTL Court of Appeal 4th District (Division 1) Case No. D066755 Sponsors:City Attorney's Office The above item was discussed in closed session. No open session announcement was made regarding this item. City of Fresno *Subject to mayoral veto Page 5 November 6, 2014City Council Meeting Minutes - Draft 3. CITY COUNCIL ID#14-5483-B ***RESOLUTION - Adopt the “Water Conservation Act”, which will develop policies and practices that will conserve water usage by all City water customers and provide better overall management of City water resources Sponsors:City Councilmember Brand and City Councilmember Caprioglio The above item was introduced to Council by Councilmembers Brand and Caprioglio. Public Utilities Director Esqueda and City Manager Rudd answered additional questions. The following member(s) of the public spoke on this item: Laura Gromis of USGBC of Central California, Rachel Eslick of the Fresno Chamber of Commerce, Bill Robinson and Time Barker. Public Utilities Director Esqueda stated, for the next budget cycle, the water conservation rebate program would include a plan discussing equitable disbursement of the rebates throughout the city. RESOLUTION 2014-181 ADOPTED On motion of Councilmember Caprioglio, seconded by Councilmember Brand, the above item was adopted. The motion carried by the following vote: Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and Xiong 7 - ID#14-5453-A BILL - (For Introduction) - Amending Section 4-401 of the Fresno Municipal Code and repealing Sections 4-402, 4-403 and 4-404 of the Fresno Municipal Code relating to prevailing wages for public works Sponsors:City Councilmember Brandau The above item was introduced to Council by President Brandau. City Attorney Sloan answered additional questions. President Brandau motioned to approve the item while un-striking (keeping) the language, "being a municipal affair" found under the proposed "Section 4-401. Applicability of State Law" BILL B-49 INTRODUCED AS AMENDED AND LAID OVER On motion of President Brandau, seconded by Councilmember Olivier, City of Fresno *Subject to mayoral veto Page 6 November 6, 2014City Council Meeting Minutes - Draft the above item was adopted as amended to include the phrase, "being a municipal affair." The motion carried by the following vote: Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and Xiong 7 - ID#14-5493-C BILL - (For Introduction) - Repealing Section 4-111 of the Fresno Municipal Code and adding Section 4-111 to the Fresno Municipal Code relating to Project Labor Agreements Sponsors:City Councilmember Brandau The above item was introduced to Council by President Brandau. City Attorney Sloan answered additional questions. The following member(s) of the public spoke on this item: Nicole Goehring of Associated Builders and Contractors Northern California, Terri Emmett of Dave Christian Constriction Company. BILL B-50 INTRODUCED AND LAID OVER On motion of President Brandau, seconded by Councilmember Olivier, the above item was adopted. The motion carried by the following vote: Aye:Brandau, Brand, Caprioglio, Olivier and Quintero5 - No:Baines and Xiong2 - 5. SCHEDULED COUNCIL HEARINGS AND MATTERS 10:00 A.M. ID#14-482 WORKSHOP regarding Public Art Sponsors:Public Works Department The above item was introduced to Council by Public Works Manager Morrison and presented by Linda Cano of Axis Art Consulting. HELD 10:45 A.M. ID#14-540 Consider an appeal filed by Councilmember Caprioglio, appealing the Planning Commission’s action to approve Conditional Use Permit No. C-13-092 and related Vesting Tentative Tract Map No. 6033/UGM, and environmental findings, by Jeffrey T. Roberts of Granville Homes, Inc, for property located on the northeast corner of N. Fowler and E. Clinton City of Fresno *Subject to mayoral veto Page 7 November 6, 2014City Council Meeting Minutes - Draft Avenues (Council District 4) (Continued from October 23, 2014) 1.ADOPT the Mitigated Negative Declaration for the Conditional Use Permit No. C-13-092 and Vesting Tentative Tract Map No. T-6033 prepared for Environmental Assessment No. A-11-003, R-11-003, C- 13-092, T6033 dated March 21, 2014 2.RESOLUTION - Deny the appeal and approve Conditional Use Permit No. C-13-092 3.RESOLUTION - Deny the appeal and approve Vesting Tentative Tract Map No. 6033/UGM Sponsors:Development and Resource Management Department The above item was continued to sometime in January 2015 by staff. 11:00 A.M. SCHEDULED COMMUNICATION ID#14-542 Appearance by Parvis Laghaifar to discuss who is responsible for the expenses of moving a signal light at the corner of Shaw and Polk The above item was continued to November 20, 2014 by the speaker. ID#14-543 Appearance by Tim Barker to discuss the Community Water Forum Mr. Barker appeared before Council and discussed the Community Water Forum. 2. GENERAL ADMINISTRATION ID#14-3412-A Actions pertaining to Parking Permit Agreement between Housing Authority and the City of Fresno: 1.Adopt a finding of Categorical Exemption pursuant to Section 15301 (Existing Facility) of California Environmental Quality Act (CEQA) Guidelines; and 2.Approve a Parking Permit Agreement for 25 parking spaces in City of Fresno Parking Garage #7 located at 801 Van Ness at a base rate of $35 per month per stall for a two (2) year term (Council District 3). Sponsors:Development and Resource Management Department The above item was removed from the agenda by Staff. ID#14-4882-B ***RESOLUTION - Granting authority to the Public Works Director to delegate the authority to other City Departments to approve contract change orders for on-site public works of construction (All Council Districts) City of Fresno *Subject to mayoral veto Page 8 November 6, 2014City Council Meeting Minutes - Draft Sponsors:Public Works Department The above item was introduced to Council by Public Works Assistant Director Andersen. RESOLUTION 2014-182 ADOPTED On motion of Councilmember Brand, seconded by Councilmember Caprioglio, the above item was approved. The motion carried by the following vote: Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and Xiong 7 - ID#14-5532-C RESOLUTION - For the Substantial Amendment No. 2012-002, No. 2013-001, and No. 2014-002 to the Fiscal Years 2012, 2013, and 2014 Annual Action Plans to incorporate the planned use of the Emergency Solutions Grant funds (Continued from October 30, 2014) Sponsors:Development and Resource Management Department The above item was introduced to Council by Development and Resource Management Director Clark. RESOLUTION 2014-183 ADOPTED On motion of Councilmember Xiong, seconded by President Brandau, the above item was adopted. The motion carried by the following vote: Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and Xiong 7 - UNSCHEDULED COMMUNICATION No members of the public addressed Council with unscheduled communication. ADJOURNMENT Adjourned at 11:48 A.M. City of Fresno *Subject to mayoral veto Page 9 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-526 Agenda Date:11/20/2014 Agenda #:1-A REPORT TO THE CITY COUNCIL November 20, 2014 FROM:SCOTT L. MOZIER, PE, Director Public Works Department THROUGH:ANDREW J. BENELLI, PE, City Engineer/Assistant Director Public Works Department, Traffic and Engineering Services Division BY:ANN LILLIE, Senior Engineering Technician Public Works Department, Traffic and Engineering Services Division SUBJECT RESOLUTION - Of Intention to annex Final Tract Map No. 6051, Annexation No. 59, to the City of Fresno Community Facilities District No. 11 (southeast corner of N. Garfield and W. Barstow Avenues); and setting the public hearing for December 18, 2014 at 2:00 P.M. (Council District 2) RECOMMENDATION Adopt Resolution of Intention to annex Final Tract Map No.6051 to City of Fresno Community Facilities District No. 11 (“CFD No. 11”). EXECUTIVE SUMMARY The landowner has petitioned the City of Fresno to have Final Tract Map No.6051 annexed to CFD No.11 to provide funding for the operation and reserves for maintenance (“Services”)pertaining to the landscaping,trees,irrigation system,and block wall within Outlot A,concrete curbs and gutters, valley gutters,traffic calming curbs and hardscaping,sidewalks and curb ramps,interior street paving,street signage and street lighting associated with this subdivision.The cost for the Services for these improvements is $571.16/lot annually.Final Tract Map No.6051 is located entirely in the Fresno City Limits.The Resolution of Intention begins the process,sets the required public hearing for Thursday,December 18,2014,at 2:00 p.m.,and defines the steps required to complete the annexation. (See attached location and feature maps) BACKGROUND On November 15,2005,the Council of the City of Fresno adopted Resolution No.2005-490 forming CFD No.11 to fund public maintenance of landscaping,open spaces,local streets,local street lights and street furniture,curbs,gutters,sidewalks,street trees and other public facilities and services as defined by the City of Fresno Special Tax Financing Law,Chapter 8,Division 1,Article 3 of the City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-526 Agenda Date:11/20/2014 Agenda #:1-A defined by the City of Fresno Special Tax Financing Law,Chapter 8,Division 1,Article 3 of the Fresno Municipal Code (“City Law”). The landowner has made a request to the City of Fresno to have Final Tract Map No.6051 annexed to CFD No.11 to provide funding for the Services pertaining to the landscaping,trees,irrigation system,and block wall within Outlot A,concrete curbs and gutters,valley gutters,traffic calming curbs and hardscaping,sidewalks and curb ramps,interior street paving,street signage and street lighting associated with this subdivision. (See attached location and feature maps) Final Tract Map No.6051 is the third and final phase of Tentative Tract Map 5600 (TT5600),is located entirely in the Fresno City Limits,and is to share equally in the maintenance of all facilities associated with TT5600. The attached Resolution initiates the annexation process,sets the public hearing on this matter for Thursday,December 18,2014,at 2:00 p.m.,sets the Maximum Special Tax at $571.16 annually per residential lot for FY14-15 and sets the annual adjustment of the Special Tax at +3%plus the increase, if any, in the construction cost index for the San Francisco Region. Annexations to existing community facilities districts are permitted under City Law.The legislative body must follow certain prescribed procedures as outlined below: §Adoption of a Resolution of Intention to Annex to CFD No. 11 §Required 7-day minimum Notice of Public Hearing §Public hearing on Annexation and Levy of Special Tax §Call a Special Mailed-Ballot Election on the proposed Special Tax §Declare the Results of the Election §Formal Adoption of Special Tax Levy (if election passes) The attached Resolution has been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a “project”and is therefore exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE Local preference was not considered since this item does not include a bid or award of a construction or services contract. FISCAL IMPACT No City funds will be involved.All costs for services will be borne by the property owners within the subject tract. Attachments:Location Map Feature Map City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-526 Agenda Date:11/20/2014 Agenda #:1-A Resolution City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ CITY OF FnESilù' PUBLIC WORKS DEPARTMENT TRAFFIC AND ENGINEERING SERVICES DIVISION oo É ô UJ C) FINAL TRACT MAP NO. 6051 tsØÉ,tr *É**usËEË=är;= o SI ERRA BULTARD BARSTOW _ SHAW -GETrySBURG -ASHLN -DAKOTA -sHtEtÐs -CLINTON -MCKINLEY -OLIVE -BELMONT _ NTELSON - - DAKOÍA - SHIELDS _ CUNTON - MCKINLEY - oltvE - BELMONÍ - TULARE - KINGS CANYON - BUTTER - CAIIFORNIA - CHURCH - JENSEN - ANNADATE - NORÍH ÌVHIÍES BRIDGE -KEARNEY - ||tız6Y< 3ËädE Éã I F tItvaZ,o|4lzoUzO< 2¿83ë =L5Uı Èo- Uts LOCATION MAP ANNEXATION NO. 59 COMMUNITY FACILITIES DISTRICT NO. 11 CITY OF FRESIN' PUBLIC WORKS DEPARTMENT TRAFFIC AND ENGINEERING SERVICES DIVISION FEATURES TO BE ADDED BY ANNEXATION NO. 59 COMMUNITY FACILITIES DISTRICT NO, 11 FINAL TRACT MAP NO. 6051 Phase III of Tentative Tract Map No. 5600 Phase I: 5600 Phase II: 5869 CONCRETE IMPROVEMENTS : CURB & GUTTER = 5,275 LF VALLEY GUTTER = 1,645 SF SIDEWALK & CURB RAMPS = 27,543 SF TRAFFIC CIRCLE: REINFORCED CONCRETE = 352 SF CURB = 64 LF STAMPED CONCRETE = 128 SF TY SAN BRUNO AVE NOT TO SCALE Ociober 14, 2014 STREET LTGHTS (70W): TOTAL = 10 EACH EXISTING WITHIN MAP BOUNDARY INTERIOR PAVEMENT: TOTAL AREA = 88,904 SF B ¡¿iv) E+ z trl z Èf'lâ =z OUTLOT A LANDSCAPE AND IRRIGATION: i TOTAL = 7,159 SF LARGETREES=4EA BLOCK WALL = 235 LF 60 51 r'r 59 E<52 E¡:l Ë58 5J () 257 54 256 ÃÃJJ RESOLUTION NO. A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, OF INTENTION TO ANNEX FINAL TRACT MAP NO. 6051 AS ANNEXATION NO. 59 TO THE CITY OF FRESNO COMMUNITY FACILITIES DISTRICT NO. 11 AND TO AUTHORIZE THE LEVY OF SPECIAL TAXES WHEREAS, the City of Fresno ("City") is a charter city and municipal corporation duly created and existing under the Constitution and laws of the State of California; and WHEREAS, under the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code ("City Law"), this Council, as the legislative body for the community facilities district and any annexation thereto, has the authority to establish a community facilities district and annex property to the community facilities district; and WHEREAS, on November 15, 2005, the Council of the City of Fresno ("Council") adopted a resolution establishing the City of Fresno Community Facilities District No. 11 ("CFD No, 11"); and WHEREAS, the original boundaries of CFD No. 11 are shown on the Boundary Map of City of Fresno Community Facilities District No. 11, recorded November 8, 2005, at Book 41,Page 61 of Assessment and Community Facilities Districts in the Office of the Recorder, County of Fresno, California, a copy of which is on file in the Office of the City Clerk of the City of Fresno ("City Clerk"); and Date Adopted: Date Approved: Effective Date: City Attorney Approval : 1of 6 Resolution No. WHEREAS, the territory encompassing the existing CFD No. 11 is attached hereto as Exhibit A and incorporated herein by this reference; and WHEREAS, the landowner of Final Tract Map No.6051 (.T6051") has formally petitioned the City to annex T6051 to CFD No. 11, and the area proposed for annexation to CFD No. 11 is attached hereto as Exhibit B and incorporated herein by this reference; and WHEREAS, the types of public seryices provided in the existing CFD No. 11 ("Services") are specified in the document attached hereto as Exhibit C, Page C-2, and incorporated herein by this reference; and WHEREAS, the types of Services to be provided to Annexation No.59 (T6051) are specified in the document attached hereto as Exhibit C, Page C-1, and incorporated herein by this reference; and WHEREAS, Annexation 59, T6051 is located entirely within the limits of the City of Fresno; and WHEREAS, CFD No. 11 and Annexation No. 59 will share costs propotlionately for Services provided by the City; and WHEREAS, Annexation No. 59, Final Tract Map No. 6051 is the third and final phase of a larger area represented by Vesting Tentative Map No.5600 ("TT5600"), and will share Services in common with all areas within TT5600; and WHEREAS, other areas within TT5600, concurrently with becoming final maps, have been or may be annexed to CFD No. 11, and the taxable propefty within Annexation No. 59 and the taxable properly within the other annexed final maps within TT5600 will share the costs of Services provided by CFD No. 11' 2of6 NOW, THEREFORE, BE lT RESOLVED by the Council of the City of Fresno as follows: 1. Recitals. The forgoing recitals are true and correct. 2. Proposed Annexation No. 59 Boundaries. The proposed boundaries of Annexation No. 59 are as shown on the map (copy attached as Exhibit B) on file with the City Clerk. The boundaries, shown in Annexation Map No. 59, for the territory proposed to be annexed, are preliminarily approved. The City Clerk is directed to record Annexation Map No. 59, or cause it to be recorded, in the Office of the Recorder, Fresno County, California within ten days after the adoption date of this resolution. 3. Services. The operation and reserves for maintenance ("Seruices") proposed to be financed in Annexation No. 59 are listed on Page C-1 of Exhibit C, attached hereto and incorporated herein by this reference' 4. Special Taxes. Except to the extent that funds are othenruise available to CFD No. 11 to pay for the Services in Annexation No. 59, a special tax sufficient to pay the costs ("Special Tax") thereof, secured by recording a continuing lien against all nonexempt real property in Annexation No, 59, will be levied annually within Annexation No. 59, and collected in the same manner as ordinary ad valorem property taxes, or in any other manner as this Council or its designee shall determine, including direct billing of the effected properly owners. The proposed rate and method of apporlionment of the Special Tax among the real properly parcels within Annexation No, 59, are described in sufficient detail for each landowner within Annexation No. 59 to estimate the maximum amount each owner will have to pay, in Exhibit D, attached hereto and incorporated herein by this reference. 3of6 5. District Annexation Report. The Director of Public Works Department, as the officer having charge and control of the Services in and for CFD No. 11, or his designee, is directed to study the proposed Seruices and to make, or cause to be made, and filed with the City Clerk a report of CFD NO. 11, Annexation No. 59 ("District Repoft"), in writing presenting the following: a. A description of the Services by type required to adequately meet the needs of CFD No. 11, Annexation No. 59. b. An estimate of the fair and reasonable cost of the Services including the cost of acquiring land, rights-of-way and easements, costs of any physical seruices required in conjunction therewith, and incidental expenses in connection therewith. c. Describe any plan for Services that will be provided in common with the existing district and/or any territory that may be annexed. d. lf the Special Tax levied within the territory proposed to be annexed is higher or lower than the existing CFD No. 11, identify the extent and reasons why the costs to provide Services in that territory are higher or lower than those provided in the existing CFD No. 11. Specify any alteration in the special tax rate levied within the existing CFD No. 11 because of the proposed annexation. e. The CFD No. 11, Annexation No. 59 District Reporl shall be made a parl of the record of the public hearing specified below. 6. Single Ballot. The propositions to set the appropriations limit and to approve the levy of the Special Tax shall be combined into a single ballot and submitted to the voters pursuant to City Law. 4of6 7. Public Hearing. Thursday, December 18,2014, al2:00 p.m., is fixed as the date and time, in the City Council Chambers, 2600 Fresno Street, Fresno, California, this Council, that this legislative body for CFD No. 11, will conduct a public hearing on the annexation of T6051 and will consider and finally determine whether the public interest, convenience and necessity require the annexation and the levy of the Special Tax. L Public Notice. The City Clerk is directed to cause notice of the public hearing to be given by publication once in a newspaper of general circulation published in the area of CFD No. 1 1. The publication shall be complete at least seven days before the hearing date set herein. The notice shall be in the form specified by Sections 53339.4 and 53322 of Chapter 2.5 oÍ the California Government Code. Attachments: Exhibit A: Original Boundaries of CFD No. 11 Exhibit B: Annexation Map No. 59 Exhibit C: Description of Seruices Exhibit D: Rate and Method of Apportionment of Special Tax ************** 5of6 STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. crrY oF FRESNO ) l, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of ,2014. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: Mayor Approval/No Return: ,2014 ,2014 ,2014 ,2014 Mayor Veto: Council Override Vote: YVONNE SPENCE, CMC City Clerk BY: Deputy APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE BY: Raj Singh Badhesha, Deputy 6of6 BlackstoneNees He rnd on Bulla rd Sh aw Ashlan Sh ields McKinley Be lm on t Whites Bridge Alluvial Sierra Ba rstow Gettysburg Da kota Clinton Olive GarfieldBryanGrantlandChateau FresnoHayesPolkCorneliaBlytheBrawleyValentineMarksVan NessWestFruitPalmFresnoFirstMillbrookCedarMapleChestnutWillowPeachAshlan Dakota Shields Clinton McKinley Olive Belmont Tulare Butler Califo rnia Church Jen sen Annadale North Kings Cany onMaroaInternational Copper Behymer Shepherd Nee s Herndon Bullard Shaw Gettysburg Teague Alluvial Sierra Ba rstow Perrin ClovisSunnysideFowlerArmstrongTemperanceLocanClovisFowlerTemperanceSunnysideLocanArmstrongChestnutPeachWillowMinnewawaMalaga Am erica n CedarOrangeMapleElmEastFigCherryMarksWestWalnutHughesFruitGrantlandHayesCorneliaBryanPolkBrawleyValentineBlytheKe arn ey Muscat No rth Annada le Musca t Ce ntral California Jensen Chu rch Ce ntral Nie ls en 41 CITY OF FRESNOMAINTENANCECFD11 ANNEXATION 41 180 168 99 99 180 Legend State Rou tes Rail Road Stre et Centerline CF D11 City Bound ary Limits Exhibit A EXHIBIT B TERRITORY TO BE ANNEXED TO THE CITY CFD NO. 11 BOUNDARY LINE OF NEW TERRITORY DOC. FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF FRESNO THIS - DAYOF ,2OL4. ATTEST: YVONNE SPENCE, CMC CITY CLERK OF THE CITY OF FRESNO DEPUTY I HEREBY CERTIFY THAT THE ANNEXATION MAP NO. 59 OF THE COMMUNITY FACILITIES DISTRICT NO. 11, CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA WAS ADOPTED BY THE COUNCIL OF THE CITY OF FRESNO BY RESOLUTTON NO. 2014-_ ON_,2014. ATTEST: YVONNE SPENCE, CMC CITY CLERK OF THE CITY OF FRESNO DEPUTY THIS ANNEXATION MAP NO. 59 OF THE CITY OF FRESNO COMMUNITY FACTL|T|ES D|STR|CT NO. 11, WAS FILED THIS_DAY OF ,2Or4 AT THE HOUR OF - O'CLOCK _M AT BOOK 44, PAGE - OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS IN THE OFFICE OF THE COUNTY RECORDER IN THE COUNTY OF FRESNO, STATE OF CALIFORNIA PAUL DICTOS, C.P.A. COUNTY RECORDER OF THE COUNTY OF FRESNO BY: REFERENCE: BOUNDARY MAP OF CITY OF FRESNO COMMUNITY FACILITIES DISTRICT NO. 11, RECORDED NOVEMBER 8, 2OO5 AT BOOK 41, PAGE 61 OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS IN THE OFFICE OF THE RECORDER IN THE COUNTY OF FRESNO, STATE OF CALIFORNIA NOTE: FOR PARCEL DIMENSIONS, SEE ASSESSOR'S MAP BOOK PAGES BY BÁRSTOTÍ AVENI'E Êl 2 Êt Ê-tF¡Fl¡Ê ü ÉiÊoz W SAN NÂDELE AVE H NE È ðÞ !¡ 2 BY ffi-ox-rræ------\\ I ÉF z MAP NO. 6051 CITY Of FRESNO - Public Works Department ANNEXATION MAP NO.59 OF COMMUNITY FACILITIES DISTRICT NO. 11 OF THE CITY OF FRESNO, FRESNO COUNTY, CALIFORNIA cFD11 59 A1 EXHIBIT C CITY OF FRESNO Community Facilities District No. 11 Annexation No. 59 Description of Services to be Financed by Community Facilities District No. 11 for Annexation No. 59 (Final Tract Map No. 6051) The operations and reserves for maintenance (“Services”) that are to be financed by Community Facilities District No. 11 (“CFD No. 11”) for Final Tract Map No. 6051, Annexation No. 59 are generally as described below. The Services will include all costs (including reserves for replacement) attributable to maintaining, servicing, cleaning, repairing and/or replacing landscaped areas and trees in public street rights-of-way, public landscape easements, public open spaces and other similar landscaped areas officially dedicated for public use. General maintenance will include, without limitation, repairing and replacing irrigation systems as necessary; staking, pruning, replacing and spraying of trees and shrubs; removing litter, debris, and garbage. Services shall include all costs attributable to cleaning, maintaining, servicing, repairing and/or replacing all ground level infrastructure (including reserves for replacement) within public street rights-of-way. Such facilities include, without limitation, concrete curbs and gutters, valley gutters, traffic calming curbs and hardscape, sidewalks and curb ramps, interior street paving, street signage, street lighting, and the block wall within Outlot A associated with this subdivision. Services shall include all costs attributable to street lighting services. Maintenance costs will include a proportionate share of all other expenses that the City of Fresno (“City”) may incur in administering CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City. Nothing in this exhibit or any other exhibit or provision of this Resolution shall be construed as committing the City or CFD No. 11 to provide all of the authorized Services or to provide for the payment of or reimbursement for all of the authorized incidental expenses. The provision of Services and/or payment or reimbursement of incidental expenses shall be subject to the successful annexation of Annexation 59 to CFD No. 11 and the availability of sufficient proceeds of Special Taxes within CFD No. 11. C-1 EXHIBIT C CITY OF FRESNO Community Facilities District No. 11 Formation Description of Services currently financed by Community Facilities District No. 11 The services that are to be financed (“Services”) by Community Facilities District No. 11 (“CFD No. 11”) are any and all Services defined by City of Fresno Special Tax Financing Law (Chapter 8, Division 1, Article 3 of the Fresno Municipal Code) and the Mello-Roos Community Facilities Act of 1982 (Chapter 2.5 commencing with Section 53311, of Part 1, Division 2, Title 5 of the California Government Code.) I. Services may include all costs attributable to maintaining, servicing, cleaning, repairing and/or replacing all facilities, including hardscaping, in landscaped areas (may include reserves for replacement) in public street rights-of-way, public landscape easements, public trail areas, parkways, and other similar landscaped areas officially dedicated for public use. II. General maintenance will include, without limitation, mowing, edging, fertilizing, seeding, aerating, and watering grass areas; repairing and replacing irrigation systems as necessary; staking, pruning, replacing and spraying of trees and shrubs; repairing and replacing paths, walkways and trails; removing litter, debris, and garbage. II. Services may include all costs attributable to cleaning, maintaining, servicing, repairing and/or replacing all local ground level street infrastructure (may include reserves for replacement) within local street rights-of-way. Such facilities may include, without limitation, street paving, curbs and gutters, sidewalks, street lighting, hydrants, inlets, street trees and street furniture. III. Services may include costs attributable to police, fire, traffic control, street lighting and recreational services. Maintenance costs will also include a proportionate share of all other expenses that the City of Fresno (“City”) may incur in administering the CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City. Nothing in this exhibit or any other exhibit or provision of this resolution shall be construed as committing the City or CFD No. 11 to provide all of the authorized Services or to provide for the payment of or reimbursement for all of the authorized incidental expenses. The provision of Services and/or payment or reimbursement of incidental expenses shall be subject to the continued existence of CFD No. 11 and the availability of sufficient proceeds of special taxes within the CFD No. 11. C-2 EXHIBIT D CITY OF FRESNO Community Facilities District No. 11 Annexation No. 59 Rate and Method of Apportionment of Special Tax Cost Estimate The estimate breaks down the costs of providing 1 year’s service for FY 2014-2015 for Final Tract Map No. 5600, Final Tract Map No. 5869 and Final Tract Map No. 6051, Phase I, II and III of Vesting Tentative Tract Map No. 5600 which totals 266 Lots. These final maps are to share equally for the cost of Services provided by Community Facilities District No. 11. ITEM DESCRIPTION ESTIMATED COST 1 Landscape Operational Costs $103,525.00 2 Other Operational Costs $3,006.00 3 Reserve for Replacement $41,406.00 4 Incidental Expenses $3,990.00 Total $151,927.00 Subdivision Appropriation Limit FINAL TRACT MAP NO. MAX. SPECIAL TAX PER RESIDENTIAL UNIT TOTAL TAXABLE UNITS APPROPRIATION LIMIT SUBDIVIDER 6051 $571.16 60 $500,000.00 Lennar Fresno D-1 EXHIBIT D City of Fresno Community Facilities District No. 11 Annexation No. 59 Rate and Method of Apportionment of Special Tax A Special Tax applicable to each assessor’s parcel in Community Facilities District No. 11 (“CFD No. 11”) shall be levied and collected according to the tax liability determined by the City Council of the City of Fresno, through the application of the appropriate amount or rate for taxable property, as described below. All of the property in CFD No. 11, unless exempted by law or by the provisions of Section E below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property subsequently annexed to CFD No. 11 unless a separate Rate and Method of Apportionment of Special Tax is adopted for the annexation area. A. DEFINITIONS The terms hereinafter set forth have the following meanings: “Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an assessor’s parcel map with an assigned assessor’s parcel number. “Assessor’s Parcel Map” means an official map of the County Assessor of the County of Fresno designating parcels by assessor’s parcel number. “City” means the City of Fresno. “City Law ” means the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code. “Council” means the City Council of the City of Fresno, acting as the legislative body of CFD No. 11. “Developable Lot” means a lot that is anticipated development of residential or non- residential uses, and which is not an outlot, remainder parcel or other parcel which is not intended to be developed or which must be further subdivided before being developed. “Excluded Parcels” means those assessor’s parcels identified as ineligible for inclusion in CFD No. 11 as shown in “Attachment 1” of this Rate and Method of Apportionment of Special Tax. “Final Map” means a final map, or portion thereof, approved by the Council of the City of Fresno pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) that creates individual developable lots for which building permits may be issued. The term “Final Map” shall not include any assessor’s parcel map or subdivision map or D-2 EXHIBIT D portion thereof that does not create individual developable lots for which a building permit may be issued, including assessor’s parcels that are designated as remainder parcels. “Fiscal Year” means the period starting April 1 and ending on the following March 31. “Maximum Special Tax” means the maximum special tax, determined in accordance with Section C, which can be levied in any Fiscal Year. “Proportionately” means, in any fiscal year, that the ratio of the actual Special Tax to the Maximum Special Tax is equal for all assessor’s parcels in CFD No. 11. “Public Property” means any property within the boundaries of CFD No. 11 that is owned by the federal government, the State of California or other local governments or public agencies. “Reserve for Replacement” means a reasonable reserve pursuant to Fresno Municipal Code 8-1-303(e) (4), as a service cost or expense and not as payment for public facilities under Government Code Section 53321(d). “Residential Unit” means a residential dwelling unit and shall include single-family unattached homes, condominiums, town homes, duplex, triplex and fourplex units, and individual apartment units in a multi-family building. For purposes of the levy of special taxes pursuant to Section C below, “Residential Units” shall include dwelling units already built on taxable property in CFD No. 11, as well as dwelling units planned, but not yet built, when the special tax is levied each fiscal year. “Shared Services” means the costs of services are paid equally by the property owners of two or more subdivisions. “Special Tax” means any special tax to be levied each fiscal year on assessor’s parcels of taxable property to fund the Special Tax Requirement as defined below. “Special Tax Requirement” means the amount necessary in any fiscal year to (i) pay authorized maintenance and improvement expenses, (ii) pay administrative expenses of CFD No. 11, and (iii) cure any delinquencies in the payment of special taxes levied in prior fiscal years or (based on delinquencies in the payment of special taxes which have already taken place) are expected to occur in the fiscal year in which the tax will be collected. “Subdivision” means the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing whether immediate or future. Property shall be considered as contiguous units, even if it is separated by roads, streets, utility easement or railroad rights-of-way. “Subdivision” includes a condominium project, as defined in Section 1351 of the Civil Code, a community apartment project, as defined in Section 1351 of the Civil Code. D-3 EXHIBIT D “Taxable Property” means all of the assessor’s parcels within the boundaries of CFD No. 11 which are not exempt from the special tax pursuant to law or Section E below. B. CALCULATION OF RESIDENTIAL UNITS On April 1 of each fiscal year, the City of Fresno (“City”) or its designee shall determine how many residential units are built, or allowed to be built, on assessor’s parcels within CFD No. 11. For parcels of undeveloped property zoned for development of single-family units attached, the number of residential units shall be determined by referencing the condominium plan, apartment plan site plan or other development plan, or by assigning the maximum allowable units permitted based on the underlying zoning for the parcel. Once a single-family attached building or buildings have been built on an assessor’s parcel, the City or its designee shall determine the actual number of residential units contained within the building or buildings, and the special tax levied against the parcel in the next fiscal year shall be calculated by dividing the Special Tax Requirement by the actual number of residential units not to exceed the Maximum Special Tax per residential unit identified for the final map in Section C, Table 1 below. C. MAXIMUM SPECIAL TAX The Maximum Special Tax (MST) applicable to each assessor’s parcel in CFD No. 11 shall be specific to each final map within CFD No. 11. When additional property is annexed to CFD No. 11, the rate and method adopted for the annexed property shall reflect the MST for the final map or final maps then annexed. The Maximum Special Tax for Fiscal Year 2014-2015 for a residential unit within Final Tract Map No. 6051 is identified in Table 1 below: Table 1 Maximum Special Tax (Fiscal Year 2014-2015)* Final Tract Map Number** Maximum Special Tax 6051 $571.16 per Residential Unit *Beginning in January of each year, the MST shall be adjusted upward annually by 3% plus the rise, if any, in the Construction Cost Index (CCI) for the San Francisco Region for the prior 12-month period (December through December) as published in the Engineering News Record, or published in a comparable index if the Engineering News Record is discontinued or otherwise not available. Each annual adjustment of the MST shall become effective on the subsequent July 1. ** A Special Tax shall be levied on all parcels within an identified final map except excluded parcels as identified in Attachment 1. D-4 EXHIBIT D D. METHOD OF LEVY AND COLLECTION OF THE SPECIAL TAX Commencing with Fiscal Year 2014-2015, the Special Tax shall be levied on all taxable parcels as follows: Step 1: Determine the Special Tax Requirement (as defined in Section A above) for the fiscal year in which the Special Tax will be collected; Step 2: Calculate the total special tax revenues that could be collected from taxable property within CFD No. 11 based on applying the Maximum Special Tax rates determined pursuant to Section C above to the number of residential units on each parcel of taxable property in CFD No. 11; If the amount determined in Step 1 is greater than or equal to the amount calculated in Step 2, levy the Maximum Special Tax set forth in Table 1 above on all parcels of taxable property in CFD No. 11; If the amount determined in Step 1 is less than the amount calculated in Step 2, levy the Special Tax proportionately against all parcels of taxable property up to 100% of the Maximum Special Tax for each subdivision as identified in Table 1, until the amount of the Special Tax levy equals the Special Tax Requirement for that fiscal year. The Special Tax for CFD No. 11 shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that CFD No. 11 may (under the authority of Government Code 53340), in any particular case, bill the taxes directly to the property owner off of the County of Fresno tax roll, and the Special Taxes will be equally subject to penalties and foreclosure if delinquent. E. EXEMPTIONS Notwithstanding any other provision of this Rate and Method of Apportionment of Special Tax, no Special Tax shall be levied on parcels that have been conveyed to a public agency, except as otherwise provided in City Law. In addition, no Special Tax shall be levied on excluded parcels or parcels that are determined not to be developable lots. D-5 EXHIBIT D ATTACHMENT “1” City of Fresno Community Facilities District No. 11 Annexation 59 Excluded Parcels THERE ARE NO EXCLUDED PARCELS IN FINAL TRACT MAP NO. 6051 D-6 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-530 Agenda Date:11/20/2014 Agenda #:1-B REPORT TO THE CITY COUNCIL November 20, 2014 FROM: Michael Lima, Controller/Finance Director Finance Department BY:S. Kim Jackson, Management Analyst III Finance Department SUBJECT Award two (2) collection agency contracts on behalf of all City of Fresno Departments to RSI Enterprises, Inc., and Financial Credit Network, Inc. RECOMMENDATION Staff recommends that the City Council approve and award two (2)Collection Agency Contracts, each consisting of an initial three-year term,with three (3)one-year extension options available for each.Staff recommends the award go to RSI Enterprises,Inc.and Financial Credit Network Inc.Each agency would be available to provide collection services on outstanding unpaid and delinquent accounts for all City of Fresno Departments and divisions on an as-needed basis. EXECUTIVE SUMMARY Staff is recommending the award of two contracts to the collection agencies that were the most responsive and responsible to the Request for Proposals (RFP)for collection services and who demonstrated comprehensive compliance with the requirements set forth in the RFP.The selection of these two agencies will enable various City departments to take advantage of each collection agency’s individual strengths and experience in dealing with the diversity and types of receivables due to the City, as well as the City’s broad customer base. BACKGROUND The goal of the RFP was to solicit proposals from qualified collection agencies to provide collection services on a contractual as-needed basis.Each agency would accept the assignment of unpaid and delinquent accounts from various City departments.Reputation,efficiency, thorough knowledge of all facets of collection requirements including current laws and regulations,(such as the Fair Debt Collection Practices Act),experience in working with municipal governments,and a demonstrated high rate of successful collections were desired City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-530 Agenda Date:11/20/2014 Agenda #:1-B municipal governments,and a demonstrated high rate of successful collections were desired attributes.In addition,the “ideal”collection agency would have the capability to report unpaid accounts to the major credit bureaus as well as provide the City with online access and the ability to review account status at all times.Proposers were advised that the City reserved the right to award one all-encompassing contract for the entire city or numerous non-exclusive contracts for each department to choose from based on collection expertise and fit,whichever the City deemed to be in its best interest.Six (6)proposals were received and were subsequently opened on the proposal submission deadline of July 5, 2014. With the exception of the Fire Department,each department performs its own billings.The Fire Department utilizes Extended Business Office services (EBO)for billings and collections,when warranted.The preponderance of departments performs their own collection efforts through letter and telephone contacts in an attempt to collect on unpaid and delinquent accounts.Referral to a collection agency will be at the City’s discretion by means of a formal assignment of the account. Depending on the individual department/division,collection agency assignment will commence usually after 30 days to six (6) months after the original invoice date. The RFP Collection Agency review committee is recommending the award of contracts to the following two collection agencies: RSI Enterprises, Inc. This proposer is the City’s current incumbent collection agency.This proposer offered the lowest rates for regular collections and was tied for the lowest rates for legal collections.In addition, they offered special low rates for Utility accounts.RSI has municipal government experience, specializes in skip tracing,online information/transmittal capabilities and has a large staff of collectors.RSI reports to credit bureaus after a 30-day dispute period,which enhances their collection efforts.This agency’s low rates,large staff,extensive municipal experience,state of the art collection system,and Extended Business Office (EBO)services meets the needs of the City of Fresno.The Committee recommends award to RSI on a contingency basis.Their proposal meets all the RFP requirements and offers the lowest rates.This company has provided acceptable service in the past with the City of Fresno and they are a full service agency.Their references were checked and the responses were excellent. Financial Credit Network, Inc. This proposer offered the fourth lowest rates for traditional,regular collections and was tied for the lowest rates for more complex legal collections.They offered special low rates for Utility accounts,based on the date of assignment.They have two offices in California,with a local office in Visalia,CA.They have over 60 years’experience in the collection industry and have sufficient qualified staff and online capabilities to assist the City,as well as report to credit bureaus.The Committee was impressed with the experience and qualifications of Financial Credit Network, Inc.It was clear that Financial Credit Network,Inc.understands local government operations. They have an effective stratified company-wide organizational structure that would provide expertise and management support throughout the contract.The Committee recommends awarding a contract to Financial Credit Network Inc.on a contingency basis.Their proposal meets all the RFP requirements and offers the City good collection rates and a Central Valley presence.Their submitted references were contacted and the responses given for their overall City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-530 Agenda Date:11/20/2014 Agenda #:1-B service was excellent. The Committee determined that the four other respondents,HS Financial Group,LLC, Linebarger Goggan Blair &Sampson,LLP,NCO Financial Systems,Inc.and Sequoia Financial Services were deemed to be non-responsive due to one or more of the following reasons: Submission of the cost proposal on a form other than the one required based on an addendum; submission of the proposal on forms other than those required in the RFP;and/or exception to the Statement of Acceptance of Terms and Conditions within the Sample Agreement. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a “project”and is therefore exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE The local preference criteria were not implemented as there were no proposals submitted by local businesses. FISCAL IMPACT The firm and consistent pursuit by collection agents pays off in enabling the City to receive more of the money that it is owed and having to write off less bad debt.In the last two calendar years, the Fire Department has utilized the Extended Business Office collection services and realized approximately $500,000 per year in revenue for the General Fund.The Business Tax Division of the Finance Department was able to recognize uncollected revenue of $200,000 in 2012 and $150,000 in 2013 with the assistance of collection services.The agencies follow standard processes in an effort to collect the City’s funds,and are paid a fee/percentage commission on the amount collected. At this time,the financial impact for future years cannot be enumerated other than to note that the expertise and experience of an agency is proven to exceed what is available in-house.This improves the City’s potential of receiving some or all of the amounts owed to it.The primary benefit of using a collection agency is improved chances of collecting money due the City. Without the tools of collection agents,debtors may be less concerned about the risks of not paying what they owe. Attachments:Committee Selection Matrix, Committee Report City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ RFP P#, Q#Bidders Sequoia Financial Service P#RSI Corporation P#Linebarger Goggan Blair & Sampson LLP P#NCO (An EGA Company)P#Financial Credit Network P#HS Financial Group, LLC P# Q1 MAIN OFFICE LOCATION:28632 Roadsie Drive, Suite 110 P4 & Pg 1 (back) 5440 W Northern Ave Cover Letter & P15 1010 Leucadia Blvd, #500 Cover Letter & Sec 3, P1 507 Prudential Road Cover Letter & Sec 3 P15 1300 West Main Street Cover Letter & P13 25651 Detroit Rd, Suite 203 Cover Letter & P4 Agoura Hills, CA 91301 Glendale AZ 85301 Encinitas CA 92024 Horsham PA 19044 Visalia CA 93291 Westlade OH 44145 818-409-6000 602-627-2348 619-400-8889 800-220-2274 559-733-7550 888-871-8485 P11 Checklist items: Items Received as Requested (Y/N) NO - City forms not submitted; Certification by Sec not included; Sample Contract not included; Addendem #1 & #11 not included; Variou s YES Various NO - City forms not used throughout proposal; did not include Addendem #5 thru #11 Various YES Variou s YES Various NO - City forms no tsubmitted; Certification by Sec not included; Sample Contract not included; Addendem #1 thru #11 not included; Various P12 Cost Proposal Overview: Non-Legal Rate 23% P2 & P12-13 (back) 17.5 P14 25%P2 18.50% Sec 2 Cost Prop page 19% Cost Prop page 18%P3 Legal Rate 27% P2 & P12-13 (back) 27%P14 33.3% - City is required to reimburse for any court costs. If recovered, $$ will be returned P2 30% Sec 2 Cost Prop page 27% Cost Prop page 32%P3 Special Rates for Utilities ?N P2 16% Non-legal & 27% Legal; 8% for Lein & 8% Tax Intercept P14 25% Non-legal & 33.3% Legal P1 18.50% Sec 2 Cost Prop page 0-180 days = 15%; 181 - 364 days = 17%; 365 days = 19% for Non-Legal & 27% for Legal Cost Prop page 16.5% Non-legal & 32% Legal P3 Amend Liens (Y/N)Y P2 Y P14 Not Stated 30% Sec 2 Cost Prop page 5% Cost Prop page Not specified RFP P#, Q#Bidders Sequoia Financial Service P#RSI Corporation P#Linebarger Goggan Blair & Sampson LLP P#NCO (An EGA Company)P#Financial Credit Network P#HS Financial Group, LLC P# EBO (Y/N) Cost No price quoted (hospital billing only) P2 & P6 Y - 12%P14 Y - 25%P2 Y - $25.25 per paid hour Sec 2 Cost Prop page Y - 12% Cost Prop page $22.50 flat fee or 13.5% per account P3 P13,14,15 Qualifications and Experience: Q1 Collection Agency or Collection Bureau Agency P4 Agency and Bureau P15 Neither - Law Firm Sec 3 P1 Agency Sec 3 P15 Agency P13 Agency P4 Q3 Office Serving in Fresno (Y/N)N P4 & P12 N P16 N Sec 3 P7 N - Office is in Phoenix AZ Sec 3 P21 Y - Visalia P13 N - Office is in Westlake OH P4 Q6 Terminations (Y/N)N P4 Y -Collections pulled back in- house P17 N Sec 3 P7 Y - Gov't brought collections in- house Sec 3 P18 N P16 N P6 Q7 Organizational Chart Provided (Y/N)Y P5 (back)Y P17 Y Sec 3 P2- 5 & P8 Y Sec 3 P18 Y - Woman Owed and Operated P13-14 & P16 Y P6 (attachm Q82b Collection Results: Overall %14%P5 67% in Fresno County; 4`.7% Overall P18 26.69%Sec 3 P9 $356 per account average within Fresno County Sec 3 P19 29%P17 18% average P6 Q9 Collection Agency Staff a Fresno Staff Composition FT - 14; PT - 1 P5 FT - 11; PT - 1 P18 5 Mgmt, 16 Collectors (supported by 100 attys & 1168 staff) Sec 3 P13 3 Mgmt, 25 Collectors in the TX office (supported by the Pool) Sec 3 P19 9 Mgmt. 31 Collectors, 14 FT Clerical, 6 PT Clerical P17 35 P6 & 7 c Average # Years Experience 11 yrs P5 7.2 yrs for Collectors P18 6.18 yrs Sec 3 P13 3 yrs for Collectors Sec 3 P20 Mgmt - 20 yrs; Collectors - 7 yrs P18 11 yrs P5 d Bi-Lingual Spanish P6 & P2 (back) Spanish and Vietnamese P19 Spanish & Translation Service for other languages Sec 3 P13 Spanish mainly; Account reassigned if another language is necessary Sec 3 P20 Spanish & Hmong & Language Line Service for all other languages P18 Spanish P7 Q10 EBO Offered (Y/N)Y P6 Y P19 - 26 N Sec 3 P13 Y - did not give a complete picture of the services available Sec 3 P20-21 N - Their sister company Customer Care Network provides 'first party collection services' P18 Not at this time - But gave us rates and wants the City as first client !! P7 - 8 P15-16 Collection Procedures: Hours M-F 8 to 5; S 8 to 12 P6 M-F 6 to 8pm; Sat 8 to 4 P26 M-Th 8 to 6; F 8 to 5; S 8 to 12 Sec 3 P24 8 to 8 PST (not sure if that is M- F or 7 day a week) Sec 3 P21 M-Th 8 to 6:30; F 8 to 5:30 P19 M-Th 8 to 5; F 8 to 4:30 Ohio Time????P8 Policies and Training Explained (Y/N)Policies - Y; Training - N P6-8; P6-9 (back) Y P27 - 39 Y Sec 3 P24-28 Y - extensively Sec 3 P21-29 Y P19-25 Y P8-10 RFP P#, Q#Bidders Sequoia Financial Service P#RSI Corporation P#Linebarger Goggan Blair & Sampson LLP P#NCO (An EGA Company)P#Financial Credit Network P#HS Financial Group, LLC P# Specialized Areas Filing judgments, 'Keepers' instead of Till Taps, P5 & P8 Extensive dispute recon, Sec 3 P29-30 All Aspects of Training is #1 in company Sec 3 P21-29 Invested in state-of-the-art technogology; cross-references millions of accts; uses TransUnion Credit Rpts; Letters are sent in English and Spanish; Pay in Person; Not specified Retention of Accounts by Collection Agency?180 days P8 7 days grace period and City can recall account anytime P42 City may recall an account anytime Sec 3 P32 10 day grace period Sec 3 P33 Flexible; City may recall an account anytime - but if significant work done, then need to discuss pymt P26 5 days after initial placement oranytime if an account was submitted in error P10 No Experience Areas Unknown n/a Till Taps P32 Various Need to ask what Other Debt includes Sec 3 P43-44 None Till Taps;P9 Geared toward City Wide Efforts or Specific Citywide P4 (back)Citywide Referen ces Experience is in Court fees and Fines, Parking tickets Sec 3 P10-12 Citywide Sec 3 P41-44 Citywide Reference s Unknown Departments Risk; Solid Waste, Parking, Code Enforcement, Utilities, NSF checks, False alarms, Business tax, Other P4 (back) Business Tax; Fire - False Alarms and Inspections; Parking; Traffice Violations P59 Unknown Court fines & fees; Utilities; Business Tax; False Alarms; Building Permits; Other Debts Sec 3 P41-44 & 45 Fire; Parking; Utilities; Housing; Code Enforcement; False Alarms; Convention Center; Permits; Business Tax; Parks; Airports Reference s Unknown Q12 Stratification of Accounts (Y/N)Y P9 Y P43 Collection regardless of $$Sec 3 P28-30 Y Sec 3 P35 Y P27 Y P10 Q13 Legal Procedures: a Who is legal council?Edmond Siegel - in-house counsel P9 Stephen Denning - contracted P45 John Clinnin - in-housed counsel Sec 3 P32 Utilize NCO network in CA Sec 3 P36 E Warren Gubler of Gubler & Abbott in Visalia. Represented for 28 years P27 No legal counsel in Fresno County P11 c % uncollected 80%P9 35%P46 Doesn't usually pursue litigation Sec 3 P33 79%Sec 3 P36 48%P27 30%P11 d % satisfied 15%; 98% success rate at trials/arbitrations P9 & P1 65%P46 In Texas - nearly 100%Sec 3 P33 21%Sec 3 P36 52%P27 100% ???P11 e Credit Bureau Reporting (Y/N)Y P9 Y P46 N Sec 3 P33-34 Y Sec 3 P36 Only if FCN handles the collection activity P28 No - only on demand by City P11 h Judgements - File and Renew (Y/N)Y P10 Y P47 No reporting on Judgments but wants to start; Yes on renewing Judgments Sec 3 P34 Y on both Sec 3 P37 No on Reporting; Yes on Renewing P28 No reporting on Judgments but wants to start; Yes on renewing Judgments P11 - 12 j Banruptcy, Probate Property Foreclosure Experience (Y/N) Y - files claims on Chptr 11 & 13; Chptr 7 monitored P10 Will gather all info and forward to client - will NOT file claims P48 Y - 38 yrs experience Sec 3 P34 Y - ability to file Chptr 13 claims Sec 3 P37 Y - Balance of $50 or more; will file claims on Chapter 11 & 13 electronically P28 Only Bankruptcy experience in Ohio P12 Q14 Report Inquiry and Transmittal a Software System CollectOne P10 CUBS and other software tools P49 - 51 Proprietary custom software developed and CUBS for Fines and Fees Sec 3 P35 FACS (Flexible Automated Collection System) Sec 3 P37-39 CUBS P29 DebtNet (propriatary built by Computer Mgr)P12 b On Line Capabilities (Y/N)Y P10 Y - Client Access Web P51 Y Sec 3 P38 Y Sec 3 P40 Y P30 Only for debtors paying P12 RFP P#, Q#Bidders Sequoia Financial Service P#RSI Corporation P#Linebarger Goggan Blair & Sampson LLP P#NCO (An EGA Company)P#Financial Credit Network P#HS Financial Group, LLC P# c Account Submission (Y/N)Y P10 Y P52 Y Sec 3 P38 Y Sec 3 P40 Y P30 N P12 d Account Status (Y/N)Y P11 Y P52 Y Sec 3 P38 Y Sec 3 P40 Y P30 N P12 e Sample Collection Reports Provided (Y/N)Y P16-18 (back)Y Attach ments Y Attached Y Exhibit 1 Y Exhibit E Y Attached g SAS70 (Y/N)N P11 N P52 Y - SSAE 16 Sec 3 P38 Y - SSAE 16 Sec 3 P41 N P31 N P13 P19 Collection Agency Management Q15b # Years experience with City Gov's Accounts Does have experience but # yrs not stated (City of LA)P11 28 yrs P53 38 yrs Sec 3 P39 42 yrs Sec 3 P42 Y - Yrs not stated P31 Not specified P13 Q16 Training offered to Clients (Y/N - Cost / No Cost)Y Cost not stated P11 Y P54 Y Sec 3 P39 Y Sec 3 P44-45 Y P31 N P13 Q17 OTHER ITEMS: a Other Services A/R Mgmt and Rev Cycle training; Small Claims Court program(no cost) P11 Garnishments; EBO Services; Tax Intercept; On-line payment processing P55-57 Law Firm, pursuit of judgment remedies Sec 3 P40 Amnesty Program; 90% Retention rate; Large company with quality controls; Low complaint rate of 0.12% Sec 3 P45-46 Moneygram pymts; Migrant workers Skip Tracing Attachm ent C Data security, firewalls P13 b Local Counter (Y/N)Will provide P12 & P9 (back) N - willing to consider P57 N - but will discuss if volume justifies Sec 3 P40 N Sec 3 P47 N - but would be open to discuss P33 N - but MIGHT find a banking source with lock box P14 c Intercept Program (Y/N)Y P12 N - not in California but with other clients in other states P57 Y - at half of regular fee charged (but no experience) Sec 2 P1; Sec 3 N - not currently Sec 3 P47 Y - w/CHP once P34 N - not in CA P14 P20 References City of Alhambra, City of Indio, City of Riverside. LA Dept Water & Power P13 & P14 (back) Racine County WI; Illinois Dept of Public Aid; Redflex Traffic Systems P59 City of Las Vegas, City of Pasadena TX, City of Aurora CO, Norman OK Sec 4 P1 City of Los Angeles; CA Dept of Transp; Arizona Public Services Sec 4 P48 City of Sacramento; City of Pasadena; City of Visalia P35 GC Services, The Resolute Group LLC, Lakeland Community College P15 P46 Scope of Services: Does the collection agency meet the requirements of: Please indicate notable exceptions: General ok; Accepted Sample Contract Language Accepted Contract Language Accepted Sample Contract; Processes Well explained Does NOT accept contract language but does accept Indemnification Sec 5 P 50 Accepted Terms of Contract City Forms Sec minimual; accepted contract language RFP P#, Q#Bidders Sequoia Financial Service P#RSI Corporation P#Linebarger Goggan Blair & Sampson LLP P#NCO (An EGA Company)P#Financial Credit Network P#HS Financial Group, LLC P# Reports and Inquiry ok ok ok Good Sec 3 Exhibit 1 ok Attachm ent B not online Collection Activities ok ok ok Training extensive ok ok 20 Day Grace Period No comment 7 days only P42 Can pull account anytime 10 days only No comment No comment Training Did not identify EE training Y Y Various Training extensive Y Various For Ees only ????Y Sec 7 P1 Y Sec 7 Y Financia l Stmt Sec ??* Financials: If received have been forwarded to Treasury Officer for review (Y/N) REPORT FROM EVALUATION COMMITTEE REQUEST FOR PROPOSAL FOR COLLECTION AGENCY SERVICES FOR VARIOUS CITY DEPARTMENTS October 22, 2014 COMMITTEE MEMBERS: Kim Jackson, Managem ent Analyst III, Finance Department Brian Reams, Revenue Manager, Department of Public Utilities Anita Villarreal, Management Analyst II, Finance Department Yvonne Dedmore, Senior Accountant-Auditor, Airports Department Christina Cronin, Senior Accountant-Auditor, Fire Department Rick Kuffel, Tax/Permit Representative, Finance Department Bill Casarez, CPA, Deputy Finance Director, City of Clovis, California Jean Runnels, Senior Buyer, Purchasing, Finance Department Facilitator BACKGROUND: The goal of this Request for Proposal (RFP) was to solicit proposals from qualified collection agencies to provide collection services on a contractual as-needed basis for the assignment of unpaid and delinquent accounts from various departments throughout the City. Reputation, efficiency, thorough knowledge of all facets of collections requirements including current laws and regulations, experience in working with municipal governments, and a demonstrated high rate of successful collections were desired attributes. In addition, the “ideal” collection agency would have the capability to report unpaid accounts to the major credit bureaus as well as provide the City with online access and the ability to review account status at all times. Proposers were advised that the City reserved the right to award one all-encompassing contract for the entire City or numerous non-exclusive contracts for each Department, whichever the City deemed to be in its best interest. Sixteen proposals were downloaded from the City’s Planet bid site and six (6) proposals were received and opened on July 22, 2014. This contract would be for Three (3) years with Three (3) One year extensions. Currently, each departm ent/division performs its own billing functions with the exception of the Fire Department. The Fire Department utilizes an Extended Business Office services (EBO) for billings and subsequent collection activities, when warranted. The preponderance of departments/divisions performs their own collection efforts through letter and telephone contacts with the nonpayer in an attempt to collect on unpaid and delinquent accounts. Referral to the collection agency is at the City’s discretion by means of formal assignment of the account. Depending on the i ndi vi dua l department/division, collection agency assignment will commence usually after 30 days to six (6) months after the original invoice date. EVALUATION BY COMMITTEE: Financial Credit Network , Inc. This proposer offered the fourth lowest rates for traditional, regular collections and was tied for the lowest rates for more complex legal collections. They offered special low rates for Utility accounts, based on the date of assignment. They have two offices in California, with a local office in Visalia, CA. They have over 60 years’ experience in the collection industry and have sufficient qualified staff, and online capabilities to assist the City as well as report to credit bureaus. The Committee was impressed with the experience and qualifications of Financial Credit Network, Inc. It was clear that Financial Credit Network, Inc understands local government operations. They have an effective stratified company-wide organizational structure that would provide expertise and management support throughout the contract. The Committee recommends awarding a contract to Financial Credit Network Inc. on a contingency basis. Their proposal meets all the RFP requirements and offers the City good collection rates and a Central Valley presence. Their submitted references were contacted and the responses given for their overall service was excellent. H.S. Financial Group, LLC H.S. Financial had the second lowest proposed rates for non-legal collections and the fifth highest for legal collection services. This proposer did not conform to all the specifications in the RFP and is found to be non-responsive. This proposer failed to submit the correct proposal pages; addendums were missing; nor did they provide a signature certification for the proposal. References were checked. This proposal is considered to be non-responsive due to they failed to conform to the terms and conditions of the RFP. Linebarger, Goggan, Blair & Sampson LLP This proposal contained the highest collection rates of all of the six (6) proposers – 25% for non- legal collections and 33% plus court costs for any legal collection efforts. This proposer did not conform to all the specifications in the RFP and was found to be non-responsive. The proposer did not submit their proposal on City forms as specified; the proposal failed to submit financials, bidders or the checklist. References were checked. This proposal is considered to be non- responsive due to they failed to conform to the terms and conditions of the RFP. NCO Financial Systems, Inc. (An EGA Company) This proposer’s non-legal collection rates came in third for the lowest rates and their legal rates were the fourth lowest of the six proposers. However, this proposer did not conform to all the specifications in the RFP and was found to be non-responsive. They did not accept the City’s contract language as specified and the exceptions taken render their proposal non-responsive. References were checked. This proposal is considered to be non-responsive due to the fact they failed to conform to the terms and conditions of the RFP. RSI Enterprises, Inc. This proposer is the City’s current incumbent collection agencies. This proposer offered the lowest rates for regular collections and was tied for the lowest rates for legal collections. In addition, they offered special low rates for Utility accounts. RSI has municipal government experience, specializes in skip tracing, online information/transmittal capabilities and has a large staff of collectors. RSI reports to credit bureaus after a 30-day dispute period, which enhances their collection efforts. This agency’s low rates, large staff, extensive municipal experience, state of the art collection system, and Extended Business Office (EBO) services meets the needs of the City of Fresno. The Committee recommends award to RSI on a contingency basis. Their proposal meets all the RFP requirements and offers the lowest rates. This company has provided acceptable service in the past with the City of Fresno and they are a full service agency. There references were checked and the responses were excellent. Sequoia Financial Services Sequoia provided the City with a very high non-legal collection rate of 23% along with a 27% rate for legal collection services. This proposer did not conform to all the specifications in the RFP and was found to be non-responsive. This proposer failed to submit the correct proposal pages; addendums were missing; nor did they provide a signature certification for the proposal. References were checked. This proposal is considered to be non-responsive due to the fact they failed to conform to the terms and conditions of the RFP. RECOMMENDATION The Committee recommends that Council approve and award two Collection Agency Contracts, each consisting of an initial three-year term with provisions for three (3) one-year extension options available for each. The decision to select two companies benefits all City departments as each departm ent can commence services with one company that is deemed to best suit their needs. If that firm is not effective in their collection processes, the department will then have an alternative company available to assist them. In addition, one firm may have more extensive experience in the type of collection efforts or accounts being pursued by a department than the other firm. The two recommended collection agencies are: 1. RSI Enterprises, Inc. at the following collection fee rates: 16% non-legal collection Utility accounts; 17.5% for all other non-legal accounts; 27% legal collection accounts; 12% EBO services and; 8% for Lien and Tax Intercept accounts. 2. Financial Credit Network, Inc. at the following collection fee rates: 15% - 19% non-legal Utility collection accounts; 19% for all other non-legal accounts; 27% legal collection accounts and; 12% for EBO services which would be provided by the sister company to Financial Credit Network, Inc. Attachment: Matrix Summary of Information Submitted by Proposers RFP9296CollectionAgencyServicesForVariousCity Departments City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-550 Agenda Date:11/20/2014 Agenda #:1-C REPORT TO THE CITY COUNCIL November 20, 2014 FROM:JERRY P. DYER, Chief of Police Police Department BY:PATRICK FARMER, Deputy Chief Investigative Services Division SUBJECT Actions pertaining to the 2014 Project Safe Neighborhoods (PSN) grant program 1.Authorize the Chief of Police to accept $450,000 in grant funding from the United States Department of Justice through the California Governor’s Office of Emergency Services (CalOES), execute the grant agreement with CalOES for the 2014 Project Safe Neighborhoods (PSN) grant program 2. ***RESOLUTION - 23rd amendment to the Annual Appropriation Resolution (AAR) No. 2014-95 appropriating $58,000 into the Police Department’s FY 2015 budget for the PSN grant program (Requires 5 affirmative votes) RECOMMENDATIONS It is recommended that the City Council authorize the Chief of Police to accept $450,000 in grant funding from the United States Department of Justice through the California Governor’s Office of Emergency Services (CalOES),execute the grant agreement with CalOES for the 2014 Project Safe Neighborhoods (PSN)grant program,and adopt the 23rd amendment to the Annual Appropriation Resolution No.2014-95 appropriating $58,000 into the Police Department’s FY 2015 budget for the PSN grant program. The remaining grant funds will be incorporated into the FY 2016 budget. EXECUTIVE SUMMARY The United States Department of Justice,through CalOES,awarded the City of Fresno $450,000 in grant funding for the PSN Task Force to support a civil gang injunction,dedicate jail beds for gang and gun related offenders,create a Gangs &Illegal Guns public service announcement campaign, and implement a youth development program.The Fresno Police Department,in partnership with the Fresno County Sheriff’s Department,the United States Attorney’s Office,and the Fresno County District Attorney’s Office,will coordinate enforcement and prosecution for gun/gang offenders.An educational component in the form of a youth development program facilitated by a local community based organization,and a project evaluation by California State University,Fresno,will also be incorporated in this grant.The grant performance period begins on January 1,2015,and concludes City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-550 Agenda Date:11/20/2014 Agenda #:1-C incorporated in this grant.The grant performance period begins on January 1,2015,and concludes on September 30, 2016. BACKGROUND The citizens of the City of Fresno and Fresno County continue to be impacted by gang violence and gang-related crimes.The City of Fresno was designated as one of the twenty-five "High Intensity Gang Areas"(HIGAS)in California.According to the Multi-Agency Gang Enforcement Consortium (MAGEC),of the 24,000 validated gang members and associates in 141 established gangs within the County of Fresno,there are approximately 10,100 validated gang members and between 5,000 and 10,000 associates in the City of Fresno.The remaining validated gang members and associates reside in outlying cities within Fresno County. Reducing gang and gun violence requires a true multi-discipline collaborative community effort.The Fresno Police Department was recently awarded $450,000 in 2014 PSN grant funding to assist in our efforts to reduce gang violence and gang related shootings. If approved,grant funds will augment MAGEC and the PSN Task Force by adding support for a civil gang injunction in identified gang-impacted neighborhoods dedicating jail beds for gang/gun offenders,creating a public service announcement campaign,and implementing a youth development program. Grant funds will purchase direct project supplies for use by the Fresno Ceasefire staff,and fund training and overtime for enforcement operations related to gangs,gang violence,and illegal firearms. PSN grant requirements mandate a portion of funding is designated for a community based youth organization.We have identified the Friends of Calwa which will implement “Nature and Nurture”,a positive youth development program for children ages 11 to 15 who reside in the targeted area.The program is designed to develop leadership skills,strengthen self-esteem,learn community values and exercise self-empowerment.The program’s goal is to reduce the occurrence of youth gang- related incidents and increase positive outcomes for young people with a high risk for gang involvement. PSN grant requirements also mandate that at least 20%of the funding is earmarked for a local research partner to work with PSN Task Force and analyze local crime problems,while assisting in development of a proactive plan to reduce gun crime and/or gang violence.We have identified California State University, Fresno, as the local research partner. ENVIRONMENTAL FINDINGS This is not a “project” for the purposes of CEQA, pursuant to CEQA Guidelines Section 15378. LOCAL PREFERENCE Local preference was not considered because the AAR does not include a bid or award of a construction or service contract. City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-550 Agenda Date:11/20/2014 Agenda #:1-C FISCAL IMPACT Funding for this program will not have a negative impact on the City of Fresno’s General Fund.This is a reimbursement-based grant and all expenditures will be reimbursed on a quarterly basis.The 23rd Amendment AAR 2014-95 has been approved and is attached;there are no future obligations once the performance period has expired and all funds expended. Attachment: 23rd Amendment AAR 2014-95 City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ - 1 - Date Adopted: Date Approved: Effective Date: Resolution No. RESOLUTION NO. ___________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO ADOPTING THE 23rd AMENDMENT TO THE ANNUAL APPROPRIATION RESOLUTION NO. 2014-95 APPROPRIATING $58,000 INTO THE POLICE DEPARTMENT’S BUDGET FOR THE PSN GRANT PROGRAM BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FRESNO: THAT PART III of the Annual Appropriation Resolution No. 2014-95 be and is hereby amended as follows: Increase/(Decrease) TO: POLICE DEPARTMENT Misc State Grants - Police $ 58,000 THAT account titles and numbers requiring adjustment by this Resolution are as follows: Misc State Grants - Police Revenues: Account: 33401 State-Grant $ 58,000 Fund: 22028 Org Unit: 156280 Total Revenues $ 58,000 Appropriations: Account: 51301 Overtime $ 5,000 55801 Training 2,400 56107 Office Supplies 2,600 58002 Outside Agency Support 48,000 Fund: 22028 Org Unit: 156280 Total Appropriations $ 58,000 THAT the purpose is to appropriate $58,000 for the Project Safe Neighborhoods (PSN) Program. - 2 - Date Adopted: Date Approved: Effective Date: Resolution No. CLERK’S CERTIFICATION STATE OF CALIFORNIA} COUNTY OF FRESNO } ss. CITY OF FRESNO } I, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foreg oing Resolution was adopted by the Council of the City of Fresno, California, at a regular meeting thereof, held on the Day of , 2014 AYES: NOES: ABSENT: ABSTAIN: Mayor Approval: , 2014 Mayor Approval/No Return: , 2014 Mayor Veto: , 2014 Council Override Veto: , 2014 YVONNE SPENCE, CMC City Clerk City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-551 Agenda Date:11/20/2014 Agenda #:1-D REPORT TO THE CITY COUNCIL November 20, 2014 FROM:KERRI L. DONIS, Fire Chief Fire Department BY:CHERYL CARLSON, Management Analyst III Fire Department SUBJECT Approve Master Agreement for inter-agency instructional services between Fresno City College and the City of Fresno Fire Department for reimbursement of instructional training hour costs RECOMMENDATION It is recommended Council approve the Master Agreement between Fresno City College and the City of Fresno Fire Department for reimbursement of instructional training hour costs. EXECUTIVE SUMMARY The Fresno Fire Department (FFD)had a similar training reimbursement agreement with Fresno City College (FCC)in place beginning in 1999.In December 2009,FCC terminated the agreement due to the loss of the program administrator.FFD was successful in negotiating a similar agreement with Miramar College in San Diego which has been in place since July 2,2010.FCC has agreed to reinstitute their instructional service agreement program with FFD which will provide the opportunity for increased revenues with lower enrollment fees.The initial term of the agreement is retroactive to July 1,2014 and ends on June 30,2015.Funds received from this agreement will be reinvested back into the program for the services, facilities, materials and equipment supplied for student training. BACKGROUND In order to maintain the professional skills of emergency response personnel,FFD strives to provide up to 240 hours of continuing education per member each year.This standard is consistent with Insurance Service office (ISO) requirements for rating fire departments. FCC provides registration and college units for specialized training for the Department’s sworn, safety,and firefighting personnel as part of monthly continuing education needs.In 1999,FFD entered into an agreement with FCC that provided reimbursement for instructional training hours City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-551 Agenda Date:11/20/2014 Agenda #:1-D entered into an agreement with FCC that provided reimbursement for instructional training hours provided by FFD staff.Under the agreement,FCC offered approved educational courses through its various programs to meet the needs of the FFD,and then FFD provided instructors,facilitators, equipment,materials,day-to-day management support and all other related overhead necessary to conduct FCC’s affiliated education programs and was reimbursed a fee of $2.75 per student instructional hour less registration fees.Due to the loss of the program administrator,FCC terminated the program effective December 31,2009.At that time,staff began seeking other agencies to replace FCC and was successful in negotiating an agreement with Miramar College in San Diego,and that agreement was approved by Council on May 6,2010.Under the terms of the Miramar College agreement,the department also receives $2.75 per student instructional hour less registration fees for specific training per student contact hour for all services,facilities,materials and equipment it supplies.The Miramar College agreement began on July 2,2010 and is in the final year of its five-year term. FCC has reinstituted their instructional service reimbursement program.The proposed agreement with FFD provides an opportunity for increased training revenues as the FCC agreement will reimburse up to a maximum of 92,000 hours per fiscal year.The Miramar College agreement has a per student cap of 240 hours which limits total hours available for reimbursement to less than 75,000 hours per fiscal year.The reimbursements received under these agreements are used to supplement the departmental training program and provide for services,facilities,materials and equipment.As such,FFD is recommending approval of the Master Agreement with FCC for a one year term retroactive to July 1,2014 and ending on June 30,2015.The agreement provides for one year extensions upon written notification and acceptance of the parties.The Miramar College agreement provides for termination on thirty (30)days written notice to the other party,with or without reason.Upon approval of the FCC Master Agreement,FFD will provide the requisite the 30 day termination notice to Miramar College. Training revenues that may be realized from the FCC agreement can be up to $200,000 net of enrollment fees depending upon the training hours documented by field personnel.These revenues and expenditures are accounted for in Fund 24020 -Training Fund and will be used to supplement the costs of training overtime, materials and equipment utilized in the training unit. The City Attorney has reviewed and approved the agreement as to form. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a “project” for purposes of the California Environmental Quality Act. LOCAL PREFERENCE Local preference was not implemented because the Master Agreement does not include an award of a construction or services contract. FISCAL IMPACT Training revenues that may be realized from this agreement can be up to $200,000 net of enrollment fees,subject to the training hours documented by field personnel.These revenues will be used to City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-551 Agenda Date:11/20/2014 Agenda #:1-D offset the costs of training overtime and the materials and equipment utilized in the training unit. Attachment: Master Instructional Service Agreement Between Fresno City College and City of Fresno Fire Department City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ 1 MASTER AGREEMENT BETWEEN FRESNO CITY COLLEGE AND CITY OF FRESNO FIRE DEPARTMENT INSTRUCTIONAL SERVICE AGREEMENT This Agreement is made and entered into this _____ day of _________, 2014 by and between Fresno City College, (“FCC”), a college of the State Center Community College District, (“SCCCD”) and the City of Fresno, a municipal corporation, (“CITY”). WITNESSETH: WHEREAS, FCC is authorized by the California Education Code and Title 5 of the California Code of Regulations, to conduct Contract Instruction, Assessment, and Counseling Services to serve community needs; WHEREAS, CITY desires to contract with FCC for services as identified herein; and WHEREAS, the parties intend that this Agreement provide for the mutual cooperation of FCC and CITY in the provision of quality instruction and training to meet community needs. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, FCC and CITY mutually agree as follows: Section 1. RESPONSIBILITIES OF FCC a. FCC shall offer approved educational courses through its various programs to meet the needs of the CITY’s Fire Department, hereinafter referred to as “FFD.” b. FCC shall provide a coordinator to work with FFD. Said coordinator shall act as the FFD co-director for all FCC affiliated educational courses. Under no circumstances, however, shall the coordinator have authority over the remaining operations of FFD, including but not limited to, personnel issues concerning FFD employees, operational budget, or the use, maintenance, or scheduling of FFD facilities. c. FCC and FFD will mutually ensure that ancillary and support services are provided for the students, (e.g. Counseling, Guidance, & Placement Assistance). d. FCC shall assist the FFD in registration and other support services to students in order to adequately manage and control its course offerings. 2 e. FCC shall approve of the selection of instructors and facilitators and evaluate the quality of instruction to ensure that it meets the needs of the students and the accreditation requirements of FCC. FCC shall have the primary right to control and direct the instructional activities of all instructors. f. FCC shall ensure that course offerings meet all appropriate requirements of the California Education Code, (“Education Code”) and Title 5 of the California Code of Regulations (“Title 5”). g. FCC shall consult the FFD on any revisions to existing FCC courses designed for the FFD program, initiation of new courses, or any other changes, in order to ensure the quality of educational services and to meet the needs of the FFD. h. FCC shall provide the use of its facilities and equipment free of charge for use by the FFD, on an as-needed, space available basis for affiliated programs. FCC shall attempt to provide use of said facilities and equipment during normal business hours. i. FCC shall demonstrate control and direction through such actions as providing the instructor of record an orientation, instructor’s manual, Title 5 course outlines, curriculum materials, testing and grading procedures and any other materials and services it would provide its hourly instructors on campus. j. FCC shall waive the health fee for all FFD students. k. By signing this Agreement, FCC certifies that it does not receive full compensation for direct education costs of the course from any public o r private agency; individual or group. Section 2. RESPONSIBILITIES OF FFD a. FFD shall provide classroom space for use as off -campus sites by FCC, free of charge for affiliated programs. FFD shall attempt to provide use of said facilities during normal business hours. b. FFD shall provide instructors, facilitators, equipment, materials, day-to-day management support, and all other related overhead necessary to conduct FCC’s affiliated educational programs. c. FFD shall cooperate with FCC to ensure that all personnel, equipment, and materials used in carrying out its responsibilities under this Agreement conform to Education Code and Title 5 mandated standards governing instructional programs, including minimum qualifications for instructors. d. CITY shall use the money received as compensation for services under this Agreement for educational and training related purposes as they relate to fire service training programs. e. FFD shall assist FCC in collecting all instructional fees associated with the class offerings under this Agreement. 3 f. Records of student attendance and achievement shall be maintained by FFD. Records will be open for review at all times by officials of FCC and submitted on a schedule developed by FCC. g. By signing this Agreement, CITY certifies the training facility is open to the public and that the instructional activity to be conducted will not be fully funded by other sources. Section 3. PAYMENT FOR SERVICES a. In consideration for the services provided herein, FCC shall pay CITY $2.75 per student instructional hour that is eligible for state general apportionment. b. For fiscal year 2014/2015, (for purposes of this Agreement, “fiscal year” begins July 1 and ends June 30) said hours shall not exceed 92,000 Student Instructional Hours or 175.23 Full Time Equivalent Students (FTES), unless mutually agreed prior to May 1, 2015. The same limits shall apply in each subsequent fiscal year, unless otherwise agreed in writing by the parties. c. Any subsequent year’s student instructional hour cap shall be determined at least sixty (60) days prior to the start of the next fiscal year. d. CITY shall present FCC with a valid invoice of all mutually agreed upon instructional hours presented under this Agreement and FCC shall pay CITY the agreed contract price within 45 days. The registration fees for courses under this contract will be deducted from the total amount of the said invoice. FCC shall consider this payment for the registration fees and CITY shall consider the contracted price, minus the registration fees, as payment in full. e. Instructional hours are defined as those hours that are reported on SCCCD’s CCFS-320, California Community Colleges Apportionment Attendance Reports, and are subject to audit by SCCCD’s independent auditor and the California Community Colleges Chancellor’s Office. Section 4. INDEMNIFICATION a. CITY shall indemnify, hold harmless and defend FCC, and each of its officers, officials, agents, and volunteers from and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by CITY, FCC or any other person, and from and from any and all claims, demands and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly from the negligent or intentional acts or omissions of CITY or any of its officers, officials, employees, agents or volunteers in the performance of this Agreement; provided nothing herein 4 shall constitute a waiver by CITY of governmental immunities including California Government Code Section 810 et seq. b. FCC shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to pe rsonal injury, death at any time and property damage) incurred by the CITY, FCC or any other person, and from any and all claims, demands and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly from the negligent or intentional acts or omissions of FCC or any of its officers, officials, employees, agents or volunteers in the performance of this Agreement; provided nothing herein shall constitute a waiver by FCC of governmental immunities including California Government Code Section 810 et seq. c. In the event of concurrent negligence on the part of FCC or any of its officers, officials, employees, agents or volunteers, and CITY or any of its officers, officials, employees, agents or volunteers, the liability for any and all such claims, demands and actions in law or equity for such losses, fines, penalties, forfeitures, costs and damages shall be apportioned under the State of California’s theory of comparative negligence as presently established or as may be modified hereafter. d. This section shall survive expiration or termination of this Agreement. Section 5. INSURANCE a. Each party shall insure its activities in connection with this Agreement and maintain at all times insurance in coverage and limit amounts reasonably necessary to protect itself against injuries and damages arising from the acts or omissions caused by each party, their respective Boards, officers, employees and agents in the performance of this Agreemen t. This insurance requirement may be satisfied through a program of self - insurance, or insurance coverage afforded to public entities through a Joint Powers Authority (JPA) risk pool. Section 6. MISCELLANEOUS a. If any of the provisions of this Agreement are found to be, or become contrary to State law or regulations, or court decisions, FCC and CITY agree that the Agreement shall be renegotiated as it relates to said provision, but the remainder of the Agreement shall remain in full force and effect. b. The term of this Agreement shall be a period of time commencing on July 1, 2014, and ending on June 30, 2015. This agreement may be extended for additional periods of one (1) year upon agreement in writing by both parties. Notwithstanding the foregoing, this Agreement may be terminated at any time, with or without cause, upon written notice given to the other 5 party at least thirty (30) days prior to end of the term, in which classes are currently in session. In the event of such termination, each party sh all fully pay and discharge all obligations accruing to the other party up to and including the date of termination. Neither party shall incur any additional liability to the other by reason of such termination. c. Either party hereto maintains the right to cancel services prior to the beginning of each course at no cost to either party to this Agreement. d. CITY and FCC will not discriminate in the selection of any student to receive instruction pursuant to this Agreement because of race, creed, color, national origin, sex, disability (physical or mental), religion, age or any other characteristic prohibited by law. e. The parties agree that no action, at law or equity, including an action for declaratory relief, shall be brought unless the underlying c laim and/or cause of action has been submitted to non -binding arbitration before a mutually acceptable arbitrator appointed by the Judicial Arbitration and Mediation Service. f. FCC has the primary right to control and direct the activities of the person or persons furnished by the CITY during the term of the Agreement. g. This Agreement supersedes any and all other agreements, oral or written between the parties hereto with respect to the use of the aforesaid facilities or services and contains all covenants and agreements between the parties with respect hereto. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party, or by anyone acting on behalf of any parties, which are not embodied herein, and that no other agreement, statement, or promise not contained herein shall be valid or binding. Any modification to this Agreement shall be effective only if it is in writing and signed by the CITY and FCC in the form of an amendment to this Agreement. h. Notice or correspondence required by this Agreement shall be delivered personally or by United States mail as follows: To FCC: To FFD: Gordon Moncibais Christine Boozer Career Technology Center Fresno Fire Department 2930 E. Annadale Ave. 911 H Street Fresno, Ca 93725 Fresno, Ca 93721 i. The specific courses covered under this Agreement are described in Attachment 1, which are incorporated herein by this reference. j. In addition to the specific courses noted above, the parties may offer additional courses pursuant to this Agreement, on the same terms and conditions as this Agreement. For each additional course of instruction, 6 written agreement to offer the course is required by CITY’s Fire Chief or designee, and the FCC President or designee. The course particulars must be set forth in writing as with the courses listed above, and will become attachments to this Agreement. IN WITNESS WHEREOF, The parties hereto have executed this Agreement to be effective July 1, 2014. CITY OF FRESNO, a Municipal Corporation _______________________________ Kerri Donis, Chief Fresno Fire Department Date:________________ APPROVED AS TO LEGAL FORM: DOUGLAS T. SLOAN City Attorney _______________________________ Brandon M. Collet Deputy City Attorney Date:_________________ ATTEST: YVONNE SPENCE, CMC City Clerk _______________________________ Deputy Date:_________________ Fresno City College, a college is the State Center Community College District ________________________________ Mr. Edwin Eng Vice Chancellor Finance and Administration Date:_________________ REVIEWED AND RECOMMENDED FOR APPROVAL ________________________________ Mr. Tony Cantu, President Fresno City College Date:_________________ APPROVED AS TO LEGAL FORM: ________________________________ Gregory Taylor, District Counsel Date:_________________ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-557 Agenda Date:11/20/2014 Agenda #:1-E REPORT TO THE CITY COUNCIL November 20, 2014 FROM:SCOTT L. MOZIER, PE, Director Public Works Department THROUGH:ANDREW J. BENELLI, PE, City Engineer/Assistant Director Public Works Department, Traffic and Engineering Services Division BY:CRAIG L. HANSEN, Supervising Real Estate Agent Public Works Department, Real Estate Services Section SUBJECT Actions pertaining to a sale of a portion of excess property in the San Joaquin River bottom just east of Fig Garden Golf Course: 1. Adopt a finding of a categorical exemption pursuant to Class 1, Section 15301(c) (existing facilities) of the California Environmental Quality Act (“CEQA”) Guidelines 2. Authorize the City Manager or designee to execute a grant deed for the sale of a portion of excess property in the amount of $25,000.00 to Michael and Jeanne Adams located on the former Fresno Traction Company right of way, now known as River Bottom Road, just east of Fig Garden Golf Course in the San Joaquin River bottom APN 405-030-XR RECOMMENDATION To approve the sale of 0.315 acres of excess City property located in the San Joaquin River bottom just east of Fig Garden Golf Course to Michael and Jeanne Adams for $25,000. EXECUTIVE SUMMARY Michael and Jeanne Adams attempted to purchase the property located on the former Fresno Traction Company right of way,now known as River Bottom Road,just east of Fig Garden Golf Course in the San Joaquin River bottom APN 405-030-XR (“Property”)from Fresno County years ago,but the County instead sold the property to the City of Fresno in 1991.It has since sat unused and vacant.Due to individuals loitering and recent fires,one of which burned down the house of the Adams’neighbor,the Adams approached the City about purchasing a portion of the right of way which abuts the back of their existing property.Staff agreed to sell the Property to the Adams for the City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-557 Agenda Date:11/20/2014 Agenda #:1-E internal appraised price of $25,000, pending approval by the City Council. BACKGROUND The Fresno Traction Company operated trolley cars in and around Fresno from 1904 to 1939.River Bottom Road was a trolley line which transported the public to an amusement park operated in the area.After the amusement park folded and the Fresno Traction Company went out of business,the Property was transferred to Fresno County.In 1991,the City of Fresno acquired the Property from Fresno County for $17,000.Over the next 20+years the Property sat unused and the foliage began accumulating.In 2011,the area experienced a series of fires allegedly set by pedestrians who were loitering along the old right of way.Concerned by the threat to neighboring homes,Michael and Jeanne Adams offered to purchase a portion of the old rail bed from the City of Fresno for an internal appraised price of $25,000.The Adams plan to acquire only the portion that abuts their property, reduce the fire danger by cutting back some of the overgrown foliage and take the necessary precautions to keep people from loitering.The Property is free of any liens or bonds and the proceeds will be deposited into the General Fund.The City Attorney has reviewed and approved the purchase and sale agreement along with the grant deed as to form. ENVIRONMENTAL FINDINGS The project falls within the Class 1 Categorical Exemption set forth in the CEQA Guidelines,Section 15301(c)as the subject property has been vacant for decades and the new owners are not intending to improve the property once escrow closes.Furthermore,none of the exceptions to the Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to this project. LOCAL PREFERENCE Local preference was not considered because the City’s sale of the Property does not include a bid or award of a construction or services contract. FISCAL IMPACT The City of Fresno will net approximately $25,000 of General Fund revenue from the sale of the Property. Attachment: Aerial photo of subject property City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ Vicinity Map APN 405-030-XR W RIVER BOTTOM RDW RIVER BOTTOM RDW RIVER BOTTOM RD W RIVER BOTTOM RDW RIVER BOTTOM RD W THOMASON PLW THOMASON PLW THOMASON PLW THOMASON PLW THOMASON PL W BLU FF AVEW BLUFF AVEW BLU FF AVEW BLU FF AVEW BLU FF AVE W LOMA LINDA AVEW LOMA LINDA AVEW LOMA LINDA AVEW LOMA LINDA AVEW LOMA LINDA AVE W PINEDALE AVEW PINEDALE AVEW PINEDALE AVEW PINEDALE AVEW PINEDALE AVEW MINARETS AVEW MINARETS AVEW MINARETS AVEW MINARETS AVEW MINARETS AVE W MINARETS AVEW MINARETS AVEW M INARETS AVEW M INARETS AVEW M INARETS AVEN BROOKS AVEN BROOKS AVEN BROOKS AVEN BROOKS AVEN BROOKS AVEN CHANNING WAYN CHANNING WAYN CHANNING WAYN CHANNING WAYN CHANNING WAYW PINEDALE AVEW PINEDALE AVEW PINEDALE AVEW PINEDALE AVEW PINEDALE AVE N CHANNING WAYN CHANNING WAYN CHANNING WAYN CHANNING WAYN CHANNING WAYN WARREN AVEN WARREN AVEN WARREN AVEN WARREN AVEN WARREN AVEW MINARETS AVEW MINARETS AVEW MINARETS AVEW MINARETS AVEW MINARETS AVE N CHANNING WAYN CHANNING WAYN CHANNING WAYN CHANNING WAYN CHANNING WAYW LOMA LINDA AVEW LOMA LINDA AVEW LOMA LINDA AVEW LOMA LINDA AVEW LOMA LINDA AVE N VAN NESS BLVDN VAN NESS BLVDN VAN NESS BLVDN VAN NESS BLVDN VAN NESS BLVDN HULBERT AVEN HULBERT AVEN HULBERT AVEN HULBERT AVEN HULBERT AVEW PINEDALE AVEW PINEDALE AVEW PINEDALE AVEW PINEDALE AVEW PINEDALE AVE W PINEDALE AVEW PINEDALE AVEW PINEDALE AVEW PINEDALE AVEW PINEDALE AVEN SEQUOIA DRN SEQUOIA DRN SEQUOIA DRN SEQUOIA DRN SEQUOIA DRN SEQUOIA DRN SEQUOIA DRN SEQUOIA DRN SEQUOIA DRN SEQUOIA DRN S EQ UO I A D RN S EQ UO I A D RN S EQ UOIA D RN S EQ UOIA D RN S EQ UOIA D RVan Ness BlvdVan Ness BlvdVan Ness BlvdVan Ness BlvdVan Ness BlvdAlluvialAlluvialAlluvialAlluvialAlluvial City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-563 Agenda Date:11/20/2014 Agenda #:1-F REPORT TO THE CITY COUNCIL November 20, 2014 FROM:JENNIFER K. CLARK, AICP, Director Development and Resource Management Department THROUGH:DANIEL ZACK, AICP, Assistant Director Development and Resources Management Department BY:KARANA HATTERSLEY-DRAYTON, M.A., Historic Preservation Project Manager Development and Resource Management Department SUBJECT Approve a consultant agreement in the amount of $88,930 with Architecture + History, LLC to conduct an intensive historic survey of Phase I of the South Van Ness Industrial District and authorize the Director of the Development and Resource Management Department or her designee to sign on behalf of the City (Council District 3) RECOMMENDATION Staff recommends that the City Council approve a consultant agreement with Architecture +History, LLC in the amount of $88,930 to prepare a Historic Property Survey Report for Phase 1 of the South Van Ness Industrial Area and authorize the Director,or her designee,to sign the agreement on behalf of the City. EXECUTIVE SUMMARY In its 2014 final report,the City’s Business Friendly Fresno Task Force recommended that historic property surveys,for neighborhoods not previously surveyed,would help facilitate future investment and streamline environmental review.City staff identified the South Van Ness Industrial Revitalization Project Area,with its mix of commercial and residential properties,as a good candidate for a potential Certified Local Government (CLG)matching grant through the State Office of Historic Preservation. The Development and Resource Management Department included a $60,000 line item for this parcel-by-parcel survey in the Department’s approved 2015 budget.Department staff prepared a CLG grant application and the City of Fresno was awarded a grant of $40,000. City staff prepared and posted an RFP/RFQ for the historic property survey work for consultants’fees not to exceed $90,000.An additional $10,000 will be used for staff time and reimbursable expenses City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-563 Agenda Date:11/20/2014 Agenda #:1-F not to exceed $90,000.An additional $10,000 will be used for staff time and reimbursable expenses for a total project budget of approximately $100,000.Nine consulting firms from around the State submitted proposals.Planning and historic preservation staff carefully reviewed the proposals and based on qualifications and the quality of the sample work submitted by the applicants,chose Architecture + History, LLC, a woman-owned small business. BACKGROUND Nine plan areas are located within the (former)Redevelopment Agency’s Merger No.1 Redevelopment Project.Of these nine areas,all but one,the South Van Ness Industrial Revitalization Project Area,was included in full or part within the 304 parcel Downtown Fresno (Fulton Corridor) Historic Resources Survey.The South Van Ness Industrial District encompasses 593 acres south of State Route 41 and east of State Route 99.The District includes the southern-most section of Fresno’s historic Armenian Town.Further south the neighborhood is a mix of commercial buildings which reflect the area’s former (and current)history of fruit packing and general industrial uses.The area is a focus of the City’s economic revitalization with both vacant lots and existing older buildings. The City-established “Business Friendly Fresno Task Force”recommended that any new development or adaptive reuse of buildings will proceed more expediently if property owners are aware of the historic status of a parcel,prior to project development.One recommendation of the Task Force was to have the City prepare historic surveys of areas not previously recorded. In spring of 2014 Department staff prepared a grant application to the California State Office of Historic Preservation (OHP)for Phase 1 of the project area,thus a historic survey of the 207.6 acres north of California Avenue,which includes approximately 306 parcels.The OHP is required by federal law to pass through at least 10%of its annual Federal Historic Preservation Fund (HPF) allocation to Certified Local Government (CLGs)for Historic Preservation Fund-eligible activities.The CLG grant program is based on a match of both actual dollars and in-kind services from the applicant.The $60,000 line item in the Department budget was leveraged with the $40,000 grant as well as staff and volunteer time for a total estimated budget of $100,000. The project timeline began October 1,2014 and the project must be completed by September 30, 2015. ENVIRONMENTAL FINDINGS As defined in the California Environmental Quality Act (CEQA)Guidelines Section 15378 the award of this contract does not qualify as a “project” and is therefore exempt from CEQA requirements. LOCAL PREFERENCE According to Fresno Municipal Code Section 4-109 local preferences did not apply to the award of this contract due to the matching CLG federal grant of $40,000. FISCAL IMPACT A $60,000 match for the project was previously approved as part of the Development and Resource Management Department’s 2015 FY budget.The $40,000 CLG grant and related AAR were City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-563 Agenda Date:11/20/2014 Agenda #:1-F approved by the City Council on September 11, 2014. Attachments: Vicinity Map Consultant Agreement City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ ¯0 0.1 0.2 0.3 Miles CITY OF FRESNOCITY OF FRESNO Phase I South Van Ness Industrial District ZData Source: City of Fresno Total parcels = 306 Total acres = 207.6 K:\ArcMap\EricVB\DwntwnHistProp\SouthIndustrialSurvey Ventura Butler California Hamilton "P" Street "M" Street Van Ness Broad way "G" Street Ventura"O" Street Hazelw ood CherryEastParallel City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-565 Agenda Date:11/20/2014 Agenda #:1-G APPOINTMENT November 20, 2014 SUBJECT Approve the reappointments of Richard Keyes, Keith Lovgren, Aric Olson, Tom Richards and Lydia Zabrycki to the Fresno Regional Workforce Investment Board; the appointment of Cary Catalano to the Planning Commission - Mayor’s Office; the appointment of Jasdeep Sidhu to the District 1 Plan Implementation Committee - Councilmember Xiong; the reappointment of Nicholas Don Paladino to the Bicycle and Pedestrian Advisory Committee - Councilmember Brand; and the appointments of Wanda Hemmitt and Barigye McCoy to the District 3 Plan Implementation Committee - Acting President Baines City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ /D+ l\-st"5 RECEIVED ¡ûl,t ûtT 31 Pn 3 01 ctTy cLSRK, FRtst¡û h¡Ãayon Assrny SwsnneNcrN NOTIFICATION OF APPOINTMENT BY MAYOR TO BOARD OR COMMISSION r tJzoltt TO: THROUGH: BY: x Name: Address: Home Phone: Business Phone: Appointed to: Term: City Council Yvonne Spence, City Clerk Ashley Swearengin, Mayor Reappointment New Appointment Name of person replaced: N/A Richard Keyes N/A Fresno Regional'Workforce Investment Board Private Sector Appointment .Through 111112016 City Council Agenda 01 1/20/201 4 Crry oF FRESNo RËCEIVËD sheet along with cunent application to the city clerkos office for listing on thecity fRo.cific board, commission ord whether the act¡ôn is nt and as the AFPLI Applicants rnny be istrícrNo. Name: ni"na¡d reyo, = Hln. phona; Horue dddress¡* -' r! ¡¡¡r¡' ' - ü/k' phone: -N/A-- .. zlp:937t I ....'..'.Ê- Work Addressr ìt1A ... ., . _ -ZiP:OccupationÆmployer;Rer,ircd .. . .%-Yrs_ Months åiïffiilTffino' tonools Áttended' Degroes and cerrifications: -BA lnromarionat snrcties, MSw, P¡ofossional o¡rd Community Affi liatioue: eo¡ wtr'a-i goard or CoÍrnrission are you applying? "ii?":ir*:iîHl:*.':lr,^1:111ji ,f1vi1e on rhie Board(s) or comtnission(s); Copizs 4o. Þlayor - t\lusq',þoryas -Èçh' ù z 7 Krrily (vrtaào', RECEIVED ¿û1r ccT 3i Pn 3 01 TO: THROUGH: BY: X Name: Address: Home Phone: Business Phone: Appointed to: Term: (' ( crTy cLERä, rnrsuMâYon AsHLEY SWEARENGIN NOTIFICATION OF APPOINTMENT BY MAYOR TO BOARD OR COMMISSION City Council Yolanda Spence, City Cterk Ashley Swearengin, Mayor Reappointment New Appointment Name of person replaced: N/A Keith Lovgren Fresno Regional \ilorkforce Investment Board Private Sector Appointment Through 111112016 City Councíl Agenda I l/20/20 I 4 Crry oF FRESNo From: Sent:'o: Subject: Clerk Tuesday, February 09, 2010 10:4'1 AM Cindy Bruer ?ûI0FEB -9 flr 2t l+7 FW:APPLlcArloN FoR APPotNrMENr ro BoruBpptLERlllFFÊSö c¡ From I webmaster@Fresno.gov [mailto:webmaster@Fresno.gov] Sent: Tuesday, February 09, 2010 10:24 AM To: Clerk Subject: APPLICAION FOR APPOINTMENT TO BOARD OR COMMISSION Name: Keith Lovgren Home Phone: Home Address: Work Addressl i Mork Phone: E-Mail Address: keithloveren@comcast.net Council District: 6 Occupation/Employer: Workforce Development Manager - PG&E Years: 30 Months: 2 Educational Background, schools Attended, Degrees and certifications: California State Universify Fresno BA Degree, Geography - Environmental Studies jalifornia School of Professional Psychology MA Degree, Organizational Behavior UC Berkeley Certificate in Project Management Professional and Community Affrliations : Manager for PG&E PowerPathway job training program working closely with State Center Community college District, x'resno city college, Fresno wIB, and other agencies. Member of HoIy Spirit Parish, Pacific Service Employees Association, FSU Bultdog Foundation, former volunteer youth soccer and baseball coach. For what Board or Commission are you applying?'Workforce Investment B oard Briefly explain why you are interested in serving on this Board(s) or Commission(s): I feel I am well qualified based on my work experience and would like lend my experience and skills to better the WIB and the communites that it serves. Do you or an immediate family member have any professional or financial otential conflict of interest for this board, commission or similar body? rlo Provide 3 Personal and Professional References. relationship that may present a RECEIVED ¿f1,1 ûtT 3i Pn 3 01 crTy cLtRx, rnrsxoMôYon AsHrev Sw'ARENGIN NOTIFICATION OF APPOINTMENT BY MAYOR TO BOARD OR COMMISSION TO: THROUGH: BY: x Name: Address: Ilome Phone: Business Phone: Appointed to: Term: City Council Yvonne Spence, City Clerk Ashley Swearengin, Mayor Reappointment New Appointment Name of person replaced: N/A Aric Olson Fresno Regional Workforce Investment Board Private Sector Appointment Through 111112016 City Council Agenda I 1/20/2 0 I 4 Crrv oF FRESNo From: Sent: .oject: 8'fi;Ëiiï' september 30' 2ooe t'uu tï,h¡gseT - | Âtt "grff FW: Ap p L I cAl o N Fo R Ap p o I NrM E Nr To reflÊfiR, pftfdll$ r\úrÊs I o N Fro rn : webmaster@Fresno. gov Ima ilto :webmaster@Fresno. gov] Sent: Wednesday, September 30, 2009 1:15 pM To: Clerk SubJect: APPUCATION FOR APPOINTMENT To BOARD oR coMMISSIoN Name: ,A.ric Olson Home Phone: Work phone: Home Address: , Work Address: ' E-Mail Address: . Councii District: 6 occupation/Employer: President - Jain rrrigation, Inc. years: 3 Months: 1 Educational B aekground, S chools Attended, Degrees and certifi cations : BS Chemical Engineering - University of Minnesota MBA - Universify of St. Thomas cssBB - certified six sigma B:lack BeIt - American society of eualityM - Certified in Production and fnvnentory Management, APICS - Association for ResourceiVranagement CSCP - Certifïed Suppty Chain Professional, ÄPICS - Ässociation for Resource ManagementCMQ/OE - Certified Manager of Qualify and operational Excellence - American Society of euality Professional. and Community Affiliations : Irrigation Ässociation - Member Ämerican Society of Quality - Member APICS - Member For what Board or Commission are you applying? , X'r:esno County Workforce Invesment Board Briefly explain why you are interested in serving onthis Board(s) or Commission(s): Tb ensure proper support, and guidance is given through policy direction is provided for workforceinvestment funds in Fresno County. Provide 3 Personal and Professional References. Provide'name, addre5s, and phone number where they rnay be reached during the day.Mendy Laval- Fresno, CA, M"rk Steele - Simi Valley, CAI Jberbach - Georgia r Conies sflnt t0. Y4rynø O//¿/)) 1 TO: TIIROUGH: BY: x Name: Address: Home Phone: Business Phone: Appointed to: Term: Mevon Asnrev SwnRnnNGrN NOTIFICATION OF APPOINTMENT BY MAYOR TO BOARD OR COMMISSION City Council Yvonne Spence, City Clerk Ashley Swearengin, Mayor Reappointment New Appointment Name of person replaced: N/A Tom Richards Fresno Regional Workforce Investment Board Private Sector Appointment Through 111112016 Cíty Co uncíl Agendø I 1/20/20 I 4 Crrv oF FRESNo Fnrsruo Rrclorunl WonrroRcE lruvesrv¡erur BoRRo AppUCRTION FOR RERPPOIIIITM ENT Dett JRruuenv 3,2OI3, Appl¡cnrur |ruroRrunnoru Narrar: ToM RTcHARDS Home AooRess:!rrY: Fnes¡¡o ZlPz PHoNE: CouTiW SUPERVISORIAI DISTRICT NUN¡SIR FOR RESIDENTIAT ADDRESS: 5 clTYcouNcltD¡sTRlc1NuMBERFoRREs!DENTlAtADDREss(lraerltcnatel:5- BustN¡ss Aoonrss: PHONE: Ctw: Fnesruo ZIP: TIILS: CEO En¡nl: rorr¡ @ PENsrARGRoup.coM CouNw SupERvrsoRtAt DtsrRlcr NUMBER ron Busll,¡¡ss ADDRESS: 3 Crry Coun¡cr. DrsrRlcr NUMBER FoR BusrNEss ADDRESS (tr areucnere): 3_ How lon¡c HAVE you BEEN EMp[oyED ByrHE ABovE? 31 year(s) 0 month(s) Posrrro¡r roR Wnrcn You Ane RrRppr,vrne Business Representative (must be owner, CEO, COO or other executive with policy-making or hiring authority of a business that reflects employment opportunities in Fresno County). X E I am seeking reappointment by the City of Fresno n I am seeking reappointment by the County of Fresno tl Either Please describe your policy-making or hiring authority: Same as in original application f RVülfÌ IPl\ A¡rplir:ation for llea¡rpr;intnrent Pa¡;c 1 ol 3 v l I IiJLiNJl0 E T How many workers does your company/organization employ? L5 Economic Development Agency Representative, including representatives from Chambers of Commerce, Economic Development Agency, Business Councils, etc. Labor Representat¡ve. Local Educational Entity Representative, including representatives of local education agencies, school boards, post secondary educational institutions, entities providíng adult education and literacy activities. I have read the Fresno county Board of Supervisol's Administrative Policy No. 35 (Attachment B), the City of Fresno Conflict of lnterest Policy (Attachment C) and the Fresno Reg¡onal Workforce lnvestment Board Conflict of lnterest Policy (Attachment D) for Board appointees and agree to abide by the policies and procedures at all times while an appointed member of the Fresno Regional Workforce lnvestment Board. At present, to the best of my knowledge, no conflict of interest exlsts ln my serving on this Board. Signature i'tìWl tì if'A A¡rplicaticrr r i t-.r f ìe.¿ llroi lltr lteni PIEASE RETURN coMPIETED APPIICATIoN To: Date ['a¡;r: ll ol l!rr:ì -i5Jl-lf{itt) R TCEIVED itl't cti 31 Pn 3 02 TO: THROUGH: BY: x Name: Address: Home Phone: Business Phone: Appointed to: Term: c I Ty c L ERn$ntXgðrâs H LEy SwnenBNG rN NOTIFICATION OF APPOINTMENT BY MAYOR TO BOARD OR COMMISSION City Council Yvonne Spence, City Clerk Ashley Swearengin, Mayor Reappointment New Appointment Name of person replaced: Lydia Zabrycki Work: Fresno Regional \Morkforce Investment Board Private Sector Appointment Through 111112016 Cíty Council Agenda I 1/20/20 I 4 Crry oF FRESNo RËCEIVED t'lAR O Fn¡srvo Ree lorrlRl WonxFoRcE Appr-rcRroN FoR ReRppollvrMENT Houe Aoon¡ss: coun¡w Supe nvlsonl¡l DlstRtcr Nurvlee n FoR REslDENTlnl AooR¡ss: Crry CouNctt DtsrRlcr NUMBER ron RrsloerunAr Aoon¡ss (rr Rerlrcneu): Bus¡n¡ss ADDRESS: 'St¡u, Crry CouNct DtsrRrcr NuvarR FoR BuslNEss ADDREsS (rr nnrlrcRale ): Lap-uuJ//'Jt5E-J En¡EluW?4NörU ÃJq Drsmrcr Nurvre[d FoR BustNEss AooRrss: - r\) ryj ä=ñgrE oE ; c:, ¿ztp, 23 Tabprorur:r How ron¡e HAVE you BEEN E pLoyED By rHE ABovE I 4 year(s) month(s) Posrr¡o¡¡ FoR WHIcH You Ane Reepplyln¡e Business Representative (must be owner, CEO, COO or other executive with policy-making or hiring authority of a business that reflects employment opportunities in Fresno County).-Ft I am seeking reappointment by the City of Fresnotl I am seeking reappointment by the County of Fresno n Either FRWIB JPA Application for Reappointment Appltcnrur lruroRunlorv COUNTf SUPERvISQRIAT Please describe your policy-making or hiring a Page L of 2 v1 15JUNL0 ¿_,,¿¿-.c<e r T Economic Development Agency Representative, including representatives from Chambers of commerce, Economic Development Agency, Business councils, etc. Labor Representative. Local Educational Entity Representative, including representatives of local education agencies, school boards, post secondary educational institutions, entities providing adult education and literacy activities. I have read the Fresno County Board of Supervisor's Administrative policy No. 35 (Attachment B), the City of Fresno Conffict of lnterest Policy (Attachment C) and the Fresno Regional Workforce lnvestment Board Conflict of lnterest Policy (Attachment D) for Board appointees and agree to abide by the policies and procedures at all times while an appointed member of the iresno Regional Workforce lnvestment Board. At present, to the best of my knowledge, no conflict of interest exists in my serving on this Board. PTEASE RETURN coMPLETED APPLICATIoN To: Fresno Regionol Workforce lnvestment Board 2725 Kern Street, #208 Fresno, CA 93721 5559.490.7100 FRWIB JPA Application for Reappointment Date Page 2 of 2 v1 l-5JUN10 N TCf IV ED ¿ü1.1 Nû'..j i'ì fìn B 0B CITY CLERK, FRESNMIYOR ASHLEY SWEARENGIN NOTIF'ICATION OF' APPOINTMENT BY MAYOR TO BOARD OR COMMISSION TO: THROUGH: BY: Name: Address: Home Phone: Business Phone: Appointed to: Term: X City Council Yvonne Spence, City Clerk Ashley Swearengin, Mayor Reappointment New Appointment Name of person replaced: Andy Hansen-Smith Cary Catalano Planning Commission Through 613012016 Cíty Council Agenda I l/20/2 0 14 Crrv oF FRESNo APPLICATION FOR APPOINTMENT TO BOARD OR COMMISSION Resume or letters of recommendation may be attached. Applicants may be required to live within the Fresno City limits. I reside in Council District No. 1 Name: Carv Catalano Hm. Phone:Wk. Phone: Home Address: .Work Address: zip:93705 zrp:93721 E-Mail: Educational Background, Administration _Occupation/Employer;_Sçlf l¡qplSygd Schools Attended, Degrees and Certifications:Fresno State BA/Public Yrs 12 Months Professional and Community Affiliations: For what Board or Commission are you applying? Pt¿ullqglalolai$taa Briefly explain why you are interested in serving on this Board(s) or Commission(s): I am committed to making changes in Fresno through solid planning and land use. Provide 3 Personal./Professional References. _Mike Berg - Central Unified _Jim Rios Wells Fargo Tony Miranda - Habitat for Humaniyt Provide name, address, and phone number where they may be reached during the day. Do you or an immediate family member have any professional or hnancial relationships that may present a potential conflict of interest for this board, commission or similar body?N/A I declare under penalty of perjury the above information is true and correct. Dated: llll3ll4 Applicant: Carv Catalano (Submitto Signature Return completed, signed application to the City Clerk' s Office, 2600 Fresno Street, Room 2133, Fresno, CA9372l-3603 or FAX to (559) 488-1005. Your application will be kept on file for two years, please re-file after that time if you are still interested in serving. f,'OR OFFICE USE ONLY: Date referred to Mayor Date referred to Councilmember RECEIVED ¿û1T NûU 5 Rn 10 29 CITY CLERH, FRESIIO CA Br-oNc XroNc CouNctI-vtEMBER, DIsrnIcr 1 CITY OF FRESNO NOTIFICATION OF APPOINTMENT BY COUNCILMEMBER XIONG TO BOARD OR COMMISSION TO: THROUGH: BY: X Name: Address: City Council Yvonne Spence, City Clerk Councilmember Blong Xiong N Reappointment New appointment Jasdeep Sidhu Phone: Appointed to:Dist. I Implementation Committee TermExpirationz l0l20l8 Crry or FnesNo CIrv Harr .2600 Fn¡suo Srne¡r. FnesNo, Cnu¡onrue 93721-3600. (559) 621-8000. FAX (559) 268-1043 R E CEIVED ZO1I NüU 5 PN 3 5T C]TY CLERI{, FRESNO TA MEMORANDUM DATE: November 20,2014 TO: Yvonne Spence, City Clerk FROM: Lee Brand, Councilman, District Six SUBJECT: Notification of Re-Appointment to Bicycle and Pedestrian Advisory Committee X Reappointment New Appointment Name: Nicholas Don Paladino Address: Email: Appointed To: Bicycle and Pedestrian Advisory Committee To: Subject: FYI. Qinger Banett; Terese Edwards; Kelli Furtado R[ i L: l\'' I . FW: AppLtcAÏoN FoR AppotNrMENr ro BoARD oR cg y|Í:..riil Äil gr 52 ûll\ Cl iiÌil, FÊt.Sltl.ì c From: Clerk Sent: Wednesdaç February 22,2012 8:01 AM To: Cindy Bruer Subject: FW: APPLICATION FOR APPOINTMENT TO BOARD OR COMMISSTON From : webma ster@ Fres no.oov f mai lto : webmaster(ô Fresno, oovl Sent: Tuesday, February 2I,20LZ 8:41 PM To: Clerk Subject: APPLICAION FOR APPOTNTMENTTO BOARD OR COMMISSION Narne: Nicholas Don Paladino Home Phone: 4:^ ^^^^ "' I ñr Home Address: V/ork Address: retÍred Zip: retired E-Mail Address : ndpaladino@sbc global.net Council District: 6 Ocitipation/Employer: refireil from United States Air tr'orce Years: 23 Months: 6 Educational B ackground,' Schools Attended, De grees and Certifi cations : MA Princeton Universþ in Near Eastern Studies MS4 George Washington University in Administration BA California State University, Fresno, in History Professional and Commqnity AfFrliations: Advocacy l)irector, X'resno Cycling Club Secrètary, l'resno County Biôycie Coalition Member, Measure C Extensión Citizens Oversight Committee Member, X'resno Cpc.trahsport'ation Technical Committee representing the FCC Volunteer, Fresno Art Museum For what Boárd or Commission are you applying? Bicycle and Pedestrian Advisory Committee Briefly explain why you are interested in serving on this Board(s) or Commission(s): My three term on the Committee expired on September 30,2011, and I desire to be reappointed.I have been on the Committee since its inception. I assisted in the preparation of the city's Bicycle, Pedestian, and Trails Master Plan @MP).I desire to help implement this award winning plan and to make the city more bicycle friendly so as to encouiagb. bicycling as both a form of transportation and a recreational activity. Do you or an immediate family member have any professional or hnancial relationship that may present a 1 t42 *{ potential conflist of interest for this board, commission or sinila¡ body? No Provide 3 Personal and ProfessiCIrnl Refere,nces. ProvidE name, addtess, and phone nmber whete they may be reached during the day.CraigllamilúonÂrnold, *tl12 Ronsld Qultoriano, 2331 David R. LÍghthsll,5614 ,s R ECEIVED Z|]ltl NÙU 5 PN 3 5T CITY CLERK' FRESHO CA MEMORANDUM DATE: November20,2014 TO: Steve Brandau, Council President & Members of the Fresno City Council FROM: Oliver L. Baines lll, Member of the Fresno City Council, District 3 THROUGH: Yvonne Spence, CMC, City Clerk SUBJECT: Notification of Appointment by Councilmember Baines to Board or Commission _ Reappointment X New Appointments Name of Appointee: Wanda Hemmitt & Barigye McGoy Appointed To: District Three Plan lmplementation Committee Term: At pleasure of Council Member OLBCommitteeAppointment-Hemmitt & McCoy District3 1 1 -2O-1 4 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-569 Agenda Date:11/20/2014 Agenda #:1-H REPORT TO THE CITY COUNCIL November 20, 2014 FROM:BRIAN R. MARSHALL, Director Department of Transportation BY:JIM SCHAAD, Assistant Director Department of Transportation SUBJECT Approve amendment to the contract with Electrical Power System, Inc., for electrical engineering and design consulting services RECOMMENDATION Approve amendment to the contract agreement for electrical engineering and design consulting services with Electrical Power System Inc. (EPS) for $10,915. EXECUTIVE SUMMARY On July 1,2014,the State of California adopted new regulations under Title 24,California Building Standards Code,“Building Energy Efficiency Standards,”requiring specific switching,monitoring,and occupancy detection controls for lighting of non-residential buildings.Due to the Title 24 requirements,the City of Fresno Department of Transportation (DOT)will need to have engineered plans and drawings developed to complete the replacement of various light fixtures under canopies and throughout the DOT parking lot.The requirements will result in additional costs of $10,915, raising the total contract to $59,779, which exceeds the informal consultant bid limit of $50,000. BACKGROUND On August 25,2014,the City of Fresno Department of Transportation entered into a contract with EPS Inc.for electrical engineering and design consulting services,including electrical load analysis, PG&E service upgrades,fire alarm redesign,emergency standby generator redesign,and FAX parking lot lighting upgrades.The original contract was for $48,864,including security lighting and Title 24 requirements for the DOT parking lot area,but did not include fixtures under bus storage canopies, fuel/wash building, and other structures. Separately,the DOT was in the process of replacing lighting under the bus storage canopies, City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-569 Agenda Date:11/20/2014 Agenda #:1-H Separately,the DOT was in the process of replacing lighting under the bus storage canopies, fuel/wash building and other structures.This project was to update current fixtures with energy efficient LED models.As the LED canopy project proceeded,it was brought to DOT staff’s attention that Title 24 requirements were applicable to the entire facility,including the LED lighting under the structures. Therefore,the DOT is recommending Council approve an amendment to the contract agreement for electrical engineering and design consulting services with EPS Inc.to increase the fee to $59,779 to allow for the additional design work associated with Title 24 requirements.This will allow DOT to move forward with the installation of the new LED light fixtures under its canopy structures while complying with Title 24 regulations. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 the award of this contract does not qualify as a “project”;therefore,it is exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE Local preference not implemented because the amendment of an agreement is not subject to a competitive bid process. FISCAL IMPACT This project has no fiscal impact to the General Fund.The funding for the activity is appropriated in the DOT FY14 budget. Funding is comprised of California Proposition 1B funds. Attachment: Amendment to the contract with Electrical Power System, Inc. City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ 1 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT (“Amendment”) made and entered into as of this ____ day of __________ 2014, amends the Agreement heretofore entered into between the CITY OF FRESNO, a municipal corporation (“CITY”), and Electrical Power System, Inc., (EPS), a California corporation (“CONSULTANT”). RECITALS CITY and CONSULTANT entered into an Agreement, dated August 25, 2014, for electrical engineering and design consulting services for security lighting around the Department of Transportation parking lot (“Agreement”); CONSULTANT has started Part One of the Agreement; and CITY and CONSULTANT now desire to add time to the original agreement for the LED Security Lighting Project, therein, by requiring additional services. AGREEMENT NOW, THEREFORE, in consideration of the above recitals, which recitals are contractual in nature, the mutual premises herein contained, and for other good and valuable consideration hereby acknowledge, the parties agree that the aforesaid Agreement be amended as follows: 1. CONSULTANT shall provide additional services as described in Attachment “A”, attached hereto and incorporated herein by reference . The time to complete Part 2 of the Agreement is 28 days. 2. CONSULTANT’S sole compensation for satisfactory performance of all services required or rendered pursuant to the Agreement and this Amendment shall be a total fee of $59,779. 3. In the event of any conflict between the body of this Amendment and any Exhibit or Attachment hereto, the terms and conditions of the body of this Amendment shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contain ed within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Amendment, shall be null and void. 4. Except as otherwise provided herein, the Agreement entered into by CI TY and CONSULTANT, dated August 25, 2014, remains in full force and effect. / / / / / / 2 IN WITNESS WHEREOF, the parties have executed this Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, Electrical Power System, Inc., a municipal corporation a California corporation Brian Marshall, By: Director of Transportation Fresno Area Express/ Name: Transportation Department Title: ATTEST: YVONNE SPENCE, CMC By: City Clerk Name: By: Title: Deputy APPROVED AS TO FORM: REVIEWED BY: DOUGLAS T. SLOAN City Attorney Kathleen Healy, Administrative Manager By: Fresno Area Express/ Amanda B. Freeman Date Transportation Department Deputy Addresses: CITY: CONSULTANT: City of Fresno Electrical Power System, Inc. (EPS) Attention: Arnulfo L. Napoles, Attention: Joe Prevendar Project Manager President 2223 G Street 4049 N. Fresno Street Fresno, CA. 93706-1675 Fresno, CA 93726-4004 Telephone: (559)621-1450 Telephone: (559)221-7230 FAX: (559)448-9415 FAX: (559)221-0507 Attachment: Attachment “A” – Additional Scope of Services 3 ELECTRICAL ENGINEERING AND DESIGN CONSULTING SERVICES FOR THE LED LIGHTING UPGRADE AT THE DEPARTMENT OF TRANSPORTATION, IN COMPLIANCE WITH TITLE 24 REQUIREMENTS Attachment “A” Additional Scope of Services Consultant Service First Amendment to Agreement between City of Fresno (“City”) and Electrical Power System, Inc. (EPS) (“Consultant”) Electrical Engineering and Design Consulting Services Project Title Consultant (Electrical Power System, Inc. [EPS], a California corporation) shall perform each of the tasks described below. The consultant fee to provide additional design services is itemized as follows: Project Fee Item Task Task Description Total Cost 1 Electrical Engineer Determine what is needed to meet Title 24 compliance $1,175.00 2 Field Technician/Designer Project manager $6,080.00 3 Drafting Technician Draft CAD drawing per engineer/project manager $3,450.00 4 CAD Adder Work other than CAD Drawing $210.00 Total $10,915.00 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-575 Agenda Date:11/20/2014 Agenda #:1-I REPORT TO THE CITY COUNCIL November 20, 2014 FROM:KEVIN R. MEIKLE, Director of Aviation Airports Department SUBJECT Actions pertaining to On-Airport Ground Lease Agreement at Fresno Yosemite International Airport (Council District 4) 1.Adopt a finding of Categorical Exemption pursuant to Article 19, Section 15303(c) (New Construction) of the California Environmental Quality Act (CEQA) Guidelines to authorize a ground lease agreement between the City of Fresno and ROAM, a General Partnership between AMERICAN AIRBORNE, EMS, a California Corporation; and ROGERS HELICOPTERS, INC., a California Corporation, also known as SkyLife (“SkyLife”) at Fresno Yosemite International Airport (FAT) 2.Approve a ground lease for an Administration and Operations Facility at Fresno Yosemite International Airport between the City of Fresno and SkyLife RECOMMENDATION Adopt a finding of Categorical Exemption and approve a ground lease between the City of Fresno and ROAM,a General Partnership between AMERICAN AIRBORNE,EMS,a California Corporation;and ROGERS HELICOPTERS, INC., a California Corporation, also known as SkyLife (“SkyLife”). EXECUTIVE SUMMARY This lease will total 64,402 square feet of land to construct a new Administration and Operations Facility,plus a future aircraft hangar,to support SkyLife,American Ambulance’s air ambulance operations.Refer to attached site plan.The term of the lease will be 20 years,effective December 1,2014,and the initial fair market rental rate of $.30 per square foot will total $19,320.60 annually, with annual Consumer Price Index (CPI)adjustments.The first phase of tenant improvements will be a 4,000 square foot structure for such operational support as a pilot’s lounge,training simulators, offices,restroom,shower and kitchen facilities for flight and medical crews to be dispatch-ready.A planned second phase will include the construction of a 4,200 square foot hangar for repair/maintenance and storage of aircraft. BACKGROUND Since 1991 American Ambulance has been operating helicopters and fixed wing aircraft for rescue City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-575 Agenda Date:11/20/2014 Agenda #:1-I Since 1991 American Ambulance has been operating helicopters and fixed wing aircraft for rescue and patient transportation services through its air ambulance service company SkyLife at the Fresno Yosemite International Airport.They currently sublease space from Rogers Helicopters.However, the SkyLife operation has outgrown this arrangement and American Ambulance would like to construct its own facilities. SkyLife is a partnership between American Ambulance and Rogers Helicopters and provides rapid air medical transportation for the critically ill,injured,trauma and medical patients.SkyLife started business in 1991 and has safely transported over 14,000 patients. This lease will enable the continued growth of air ambulance services which will provide public health and safety benefits to the Fresno area.SkyLife currently utilizes a Bell 407 and Bell 430 helicopter and a fixed wing King Air airplane.These aircraft are available for rapid response 24 hours per day with a flight nurse,flight paramedic and pilot.SkyLife’s primary service area is Fresno,Kings, Madera and Tulare Counties. The lease has been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS This lease falls within the Class 3 Categorical Exemptions set forth in California Environmental Quality Act (CEQA)Guidelines,Sections 15303(c)(New Construction),as it involves new construction under 10,000 square feet of floor area in an urbanized area,and will not result in any significant negative effects relating to traffic,noise,air quality or water quality.None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines,Section 15300.2,apply to this project. LOCAL PREFERENCE The City’s Local Preference Ordinance (FMC 4-108)does not apply because this item did not go through the competitive bidding process. FISCAL IMPACT Revenue from this lease will be $19,320.60 per year and is subject to annual adjustments based on the Consumer Price Index (CPI).The total estimated revenue from this lease,assuming all 20 years, is $386,412.00 plus CPI adjustments.The rental rate is at fair market value for undeveloped land at FAT,which is consistent with Federal Aviation Administration revenue policy and guidelines.All revenue will be deposited into the Airports Enterprise Fund and will contribute to the operation and maintenance of FAT.This new lease will provide a public health and safety benefit to the local region by helping facilitate growth of the air ambulance service.There is no impact to the General Fund from this item. Attachments: - Agreement - Site Map City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ i FRESNO YOSEMITE INTERNATIONAL AIRPORT GROUND LEASE AGREEMENT FOR ADMINISTRATION AND OPERATIONS FACILITY By and Between CITY OF FRESNO a Municipal Corporation And ROAM, a General Partnership between AMERICAN AIRBORNE, EMS., a California Corporation; and ROGERS HELICOPTERS, INC., a California Corporation ii TABLE OF CONTENTS Page # WITNESSETH ..................................................................................................................... 1 SECTION 1. DEFINITIONS ................................................................................................ 1 SECTION 2. LEASED PREMISES & NEW IMPROVEMENTS .......................................... 1 A. Leased Premises. .................................................................................................. 1 B. New Improvements. ............................................................................................... 2 SECTION 3. TERM ............................................................................................................ 2 SECTION 4. RENT............................................................................................................. 2 A. Rent ....................................................................................................................... 2 B. Rental Adjustment.................................................................................................. 2 SECTION 5. USE ............................................................................................................... 4 A. Use Terms and Conditions .................................................................................... 4 SECTION 6. CAPITAL IMPROVEMENTS ......................................................................... 4 A. Improvements ........................................................................................................ 4 B. Pre-Construction Approval ..................................................................................... 4 C. Costs ...................................................................................................................... 5 D. Submission of Plans to City of Fresno Development Department: ........................ 5 E. Construction ........................................................................................................... 6 F. “As Built” Drawings and Statement of Final Costs ................................................. 7 G. Remodel, Renovate or Refurbish the Leased Premises ........................................ 8 H. Reversion of Improvements or Restoration of Premises ........................................ 8 SECTION 7. MAINTENANCE, REPAIRS ........................................................................... 8 A. Lessor’s Maintenance and Repair Obligations ....................................................... 9 B. Lessee’s Maintenance and Repair Obligations ...................................................... 9 C. Exclusive Use Premises ........................................................................................ 9 D. Safety of Operations and Repairs ........................................................................ 11 E. Failure to Repair by Lessee ................................................................................. 11 F. Access ................................................................................................................. 11 SECTION 8. INSPECTION AND AUDIT BY LESSOR ..................................................... 11 A. Entry by Lessor for Inspection ............................................................................. 11 B. Records ............................................................................................................... 12 SECTION 9. INSURANCE AND INDEMNIFICATION ...................................................... 12 A. Indemnification ..................................................................................................... 12 B. Exemption Of Lessor: .......................................................................................... 13 C. Insurance ............................................................................................................. 13 SECTION 10. TAXES ....................................................................................................... 16 D. Taxes and Assessments: ..................................................................................... 16 SECTION 11. SUBLETTING AND ASSIGNMENT ........................................................... 17 E. Right to Sublease................................................................................................. 17 F. Written Consent ................................................................................................... 17 G. Sublease Subject to Terms of this Lease ............................................................. 17 H. Right to Assignment ............................................................................................. 17 I. Payment Regarding Sublease or Assignment ..................................................... 18 SECTION 12. UTILITIES .................................................................................................. 18 A. Costs and Expenses ............................................................................................ 18 SECTION 13. LIENS ........................................................................................................ 19 iii SECTION 14. TERMINATION BY LESSOR/EVENTS OF DEFAULT ............................... 19 A. Failure to Pay ....................................................................................................... 19 B. Material Terms ..................................................................................................... 19 C. Insolvency ............................................................................................................ 19 D. Bankruptcy ........................................................................................................... 20 E. Abandon, Desert, or Vacate Leased Premises .................................................... 20 F. Non-Wavier .......................................................................................................... 20 SECTION 15. REMEDIES FOR EVENTS OF DEFAULT ................................................. 20 SECTION 16. SURVIVAL OF THE OBLIGATION OF LESSEE ....................................... 23 SECTION 17. ADDITIONAL RENT AND CHARGES ....................................................... 24 SECTION 18. QUIET ENJOYMENT ................................................................................ 24 SECTION 19. TERMINATION BY LESSEE ..................................................................... 25 A. Use of Airport for National Defense ..................................................................... 25 B. Material Default .................................................................................................... 26 C. Public Health and Safety ...................................................................................... 26 SECTION 20. NO WAIVER OF RIGHT TO DECLARE FORFEITURE ............................ 26 SECTION 21. LESSEE'S RIGHT TO REMOVE PROPERTY .......................................... 26 D. Right to Remove Property .................................................................................... 26 E. Failure to Remove Property ................................................................................. 26 F. Public Storage Facility ......................................................................................... 27 SECTION 22. SURRENDER OF PREMISES .................................................................. 27 SECTION 23. CONDEMNATION ..................................................................................... 27 A. Condemnation or Eminent Domain ...................................................................... 27 SECTION 24. NON-DISCRIMINATION ............................................................................ 28 SECTION 25. SIGNS ....................................................................................................... 29 A. Approval of Signs ................................................................................................. 30 B. Removal of Signs ................................................................................................. 30 SECTION 26. GOVERNMENTAL REQUIREMENTS - RULES AND REGULATIONS .... 30 SECTIION 27. No Representations or Warranties .......................................................... 31 SECTION 28. ENVIRONMENTAL CONCERNS AND MONITORING REQUIREMENTS 31 SECTION 29. FORCE MAJEURE .................................................................................... 33 SECTION 30. BROKERAGE ............................................................................................ 34 SECTION 31. RELATIONSHIP OF PARTIES .................................................................. 34 SECTION 32. NO PARTNERSHIP, JOINT VENTURE OR JOINT ENTERPRISE ........... 34 SECTION 33. CONFLICT OF INTEREST ........................................................................ 34 SECTION 34. GIFT TO PUBLIC SERVANT .................................................................... 34 SECTION 35. CONSTRUCTION AND APPLICATION OF TERMS ................................. 35 SECTION 36. VENUE AND GOVERNING LAW .............................................................. 36 SECTION 37. SUCCESSORS AND ASSIGNS ................................................................ 36 SECTION 38. NOTICES .................................................................................................. 36 SECTION 39. LEASEHOLD MORTGAGES PERMITTED ............................................... 36 SECTION 40. SECTION HEADINGS ............................................................................... 38 SECTION 41. COUNTERPARTS ..................................................................................... 38 SECTION 42. ENTIRE LEASE; NO ORAL MODIFICATIONS ......................................... 38 SECTION 43. SIGNATURES ........................................................................................... 39 LIST OF EXHIBITS ........................................................................................................... 39 1 GROUND LEASE FOR ADMINISTRATION AND OPERATIONS FACILITY AT [FRESNO YOSEMITE INTERNATIONAL] AIRPORT This Ground Lease for Administration and Operations Facility at Fresno Yosemite International Airport (Airport) (herein referred to as the “Lease”), by and between the CITY OF FRESNO, a California municipal corporation (herein referred to as “Lessor” or “City”) and ROAM, a General Partnership between American Airborne, EMS., a California Corporation; and ROGERS HELICOPTERS, INC., a California Corporation, located at 5484 East Perimeter, Fresno, California 93727 (herein referred to as “Lessee”) (Lessor and Lessee herein together referred to as the “Parties”), is made and entered into on this ____ day of ____________, 20 14 (the “Effective Date”), and evidences the following: WITNESSETH WHEREAS, Lessor owns and operates an airport in the City of Fresno, Fresno County, California, known as Fresno Yosemite International Airport (the “Airport”); and WHEREAS, Lessor hereby desires to lease to Lessee, and Lessee hereby desires to accept from Lessor, the Leased Premises (as defined in Section 2.A of this Lease), for the purposes set forth in this Lease; and WHEREAS, Lessee agrees to construct and use the New Improvements (as defined in Section 2.B of this Lease) on the Leased Premises in the manner provided for in this Lease. NOW, THEREFORE, in consideration of the rent herein provided to be paid by Lessee, and such other mutual covenants and consideration as herein provided, Lessor does hereby grant, lease and let to Lessee the Leased Premises, together with the right to use any common, runways, taxiways, and access of and to the Airport upon the following terms and conditions: SECTION 1. DEFINITIONS A. The terms “air carrier”, “aircraft” and “air transportation” shall have the same meaning as defined in the Federal Aviation Act of 1958, as amended. All other terms shall be defined, if necessary, in their proper context throughout this Lease. B. The term “Director” or “Director of Aviation” shall mean the City of Fresno Director of Aviation or his/her designee. SECTION 2. LEASED PREMISES & NEW IMPROVEMENTS A. Leased Premises. Lessor hereby lets and demises to Lessee and Lessee hereby leases and takes from Lessor 64,402 square feet of land, including existing paved 2 aircraft ramp (Ramp), located at the Airport, as described by the “Leased Premises Metes and Bounds Description” on Exhibit A and as shown in the “Depiction of Leased Premises” on Exhibit B, all of which are attached hereto and incorporated herein (the “Leased Premises”). B. New Improvements. Lessee agrees to construct new Administration and Operations Facility, primarily for use to support air ambulance operations, associated parking facilities and related improvements on the Leased Premises and as set forth on “Depiction of New Improvements,” attached hereto and incorporated herein as Exhibit C (the “New Improvements”). Immediately upon the Effective Date, and for the duration of construction of New Improvements, Lessee intends to install temporary facilities from which to conduct its operations. SECTION 3. TERM This Lease shall commence on the Effective Date and end twenty (20) years after the Date of Beneficial Occupancy (as defined below) (the “Term”). SECTION 4. RENT A. Rent As of the Effective Date, Lessee shall pay Lessor rent for the use and occupancy of the Leased Premises at the rate of $[0.30] per square foot per year, payable monthly in advance in the amount of one thousand six hundred and ten dollars and five cents ($1,610.05). For purposes of this Lease, the “Date of Beneficial Occupancy” shall be defined as the earlier of: (i) the date a certificate of occupancy is issued for the New Improvements or (ii) twelve (12) months from the Effective Date. 1. Proration of Rent: For any period less than a full calendar month, for which rent shall be due to be paid to Lessor by Lessee, the rent therefore shall be pro-rated on a 30 day/month basis. B. Rental Adjustment Commencing on first day of the month of the anniversary of the effective date, then on this day each year throughout the term of this lease (the “Scheduled Adjustment Date”), including any available option exercised by the Lessee, the amount of monthly rent to be paid to LESSOR by LESSEE shall be increased by the same percentage as the percentage increase in 3 the U.S. Department of Labor, Bureau of Labor Statistics (USDLBLS) Consumer Price Index (CPI) for Urban Wage Earners and Clerical Workers (all items, U.S. city average) from January 1 to December 31 during the last full calendar year prior to the Scheduled Adjustment Date. The amount of all such annual adjustments shall be determined in the manner illustrated within Exhibit D "Illustration Of Annual Rental Adjustment Computation", attached hereto and made a part hereof. Lessor shall complete the “Annual Rental Adjustment Computation” worksheet as illustrated in Exhibit D hereto, and provide a copy of such worksheet to Lessee, prior to the Scheduled Adjustment Date each year during the life of this lease. In the event of a decrease in the CPI, in any given year, there shall be no rent adjustment. In the event the CPI decreases, monthly rent shall not be adjusted. 1. Effective Period of Provisions: The foregoing rental adjustment provisions shall be effective in the manner described so long as the afore-mentioned CPI data is published by the USDLBLS in substantially the same form and is based generally on the same type data being used on January 1, 2013, and, in the event of any change in form and/or basis of said index, said provisions shall be redefined in writing by LESSOR and LESSEE to a reasonably comparable standard. 2. Retroactive Rent Adjustment: In the event any annual rent adjustment computation shall, for any reason whatsoever, be delayed beyond the Scheduled Adjustment Date, LESSEE shall continue paying the existing monthly rent amount (i.e., the amount being paid immediately prior to the Scheduled Adjustment Date of the new Lease Year) when due until the new rental rate is finally determined by LESSOR. i. Any rent adjustment due as a result of any such late computation shall apply and be paid by LESSEE retroactively as of the first day of the Lease Year for which any such late computation shall be applicable. ii. When any such late computation results in an increase in the monthly rent, LESSEE shall pay the difference between the new rate and the old rate, for each of the months of the Lease Year during which the new rent amount shall have been in effect, together with the next due monthly rent payment. 3. Place of Payment: Rent shall be paid to Lessor at the address shown below or at such place or places at which Lessor may in writing direct the payment thereof from time to time during the term hereof. 4 City of Fresno Airports Department Attn: Airports Accounting 4995 E. Clinton Way Fresno, CA 93727 SECTION 5. USE A. Use Terms and Conditions Subject to the other terms and conditions set forth in this Lease, Lessee intends to operate an air ambulance operation as the primary use, ground ambulance operations as the secondary use, along with related aircraft services, general office functions, training, parking, storing, and other air ambulance support operations. Authorization to conduct business on the Leased Premises is strictly dependent upon Lessee maintaining an air operations related business as the primary use which is a material term as defined under Sub-section 14.B. Should Lessee cease air operations, or reduce it to a level which is incidental to the Lessee’s operation on the leasehold, that will constitute a default of this lease in accordance with Section 14. Lessee shall use the Leased Premises and the New Improvements only for those uses specifically set forth in this section, unless Lessee obtains the prior written consent of the City’s Director of Aviation (the “Director of Aviation”), the consent, of which, shall not be unreasonably withheld. Lessee agrees to comply with applicable grant assurances given by the Lessor to the Federal Aviation Administration (“FAA”). SECTION 6. CAPITAL IMPROVEMENTS A. Improvements Within twelve (12) months from the Effective Date of this Lease, Lessee shall Substantially Complete (as defined below) construction of the New Improvements in accordance with the “Scope of Work for New Improvements,” attached hereto and incorporated herei n as Exhibit E. If Lessee fails to Substantially Complete the New Improvements within twelve (12) months of the Effective Date of this Lease within twelve (12) months of the Effective Date, the City, acting through the Director of Aviation may terminate this Lease. B. Pre-Construction Approval 1. Prior to entering into any contract for the construction of improvements and facilities, Lessee shall submit two (2) sets of professionally prepared plans and specifications to Director for conceptual review and approval. 2. Although such plans and specifications shall be considered 5 preliminary, they shall include a definitive site plan and all exterior elevations; building plans with materials, color selections, and structural design; landscaping and irrigation plans; paving and drainage plans; sign drawings; and any other materials which may be required to accurately portray all aspects of the proposed development covered thereby. 3. Director shall have thirty (30) days, following receipt of such plans and specifications, during which to complete a review thereof and provide lessee with written notice of Director's conceptual approval. In the event such notice shall specify that such plans and specifications are approved subject to certain reasonable changes, modifications, additions, deletions, etc., as shall be expressly set forth within said notice, Director's conceptual approval shall be deemed conditioned upon any and all such reasonable modifications, additions, deletions, changes, etc., subsequently being appropriately incorporated within lessee's plans and specifications for the particular development for which any such conditional conceptual approval shall be given. 4. All plans and specifications referred to above and all renovations, remodeling, refurbishing and construction to or upon the leased premises shall meet all applicable City of Fresno, State and Federal fire and building code requirements and provide for construction from material acceptable to Lessor. C. Costs The complete cost of developing all necessary plans and specifications as provided herein, payment for permits, fees, licenses and certificates, and the complete cost of construction of the New Improvements upon the Leased Premises by Lessee shall be borne solely by Lessee and be at no expense to Lessor whatsoever. D. Submission of Plans to City of Fresno Development Department: 1. Not later than sixty (60) days immediately following the date on which Director's conceptual approval is provided to Lessee in writing, Lessee shall submit to the City of Fresno Development Department Plans and Specifications that include any and all changes, modifications, additions and/or deletions required by Director and meet any and all of the requirements applicable to such development, pursuant to the provisions of Section 7.B and then do such things and/or complete such actions as may reasonably be required in order to obtain all applicable building or construction permits (including the filing of an "Application for Environmental Review" of the proposed construction project under the California Environmental Quality Act [“CEQA”]) and payment of any and all lawful fees and/or charges associated with 6 and/or applicable to any and all such things and/or such actions. 2. No construction shall be undertaken in or on the Leased Premises unless and until Lessee's plans and specifications shall have been approved in writing by the City of Fresno Development Department and lessee shall have been issued and have in hand any and all required permits for such construction. E. Construction 1. Workmanship Lessee agrees that all work to be performed by it or its contractor(s), including all workmanship and materials, shall be consistent with the quality of similar improvements at airports similarly-situated as the Airport. Such work shall be performed in full compliance and in accordance with the plans and specifications approved by the Director of Aviation, and such work shall be subject to inspection by the Airport and the City of Fresno Development Department during the performance thereof and upon completion. 2. Claims Lessee shall assume the risk of loss or damage to all work prior to the completion thereof. Lessee shall repair or replace any such loss or damage existing at the time of completion without cost to Lessor. Lessee shall discharge all obligations to contractors, subcontractors, materialmen, workmen and/or other persons for all work performed and for materials furnished for or on account of Lessee as such obligations mature. Nothing in this Lease shall limit the right of Lessee to contest any claims of any contractor, subcontractor, materialmen, workmen or other person without being considered in breach thereof. Nothing contained in this Lease shall be deemed to constitute consent by Lessor to the making or the attempt to make any claim or lien against the improvements constructed on the Leased Premises. Lessee agrees that any claim or lien filed, noticed or created against the same shall be removed and discharged as soon as reasonably possible. Upon Lessor’s written request, through the Director of Aviation, Lessee shall provide lien waivers or certificates of completion from its contractors to ensure that the required capital improvements have been completed according to the agreed upon plan and/or that the contractors, sub-contractors and suppliers have been paid. 3. Bond Lessee shall require its contractor(s) to furnish a "Performance Bond" and a "Payment Bond", approved as to form by the City. If Lessee acts as its own licensed contractor during the construction period, this provision shall be waived. 4. Substantial Completion For the purposes of this Lease, the term “Substantial Completion” or the phrase “Substantially Complete” shall mean that the New Improvements are sufficiently completed in accordance with the construction documents, specifications, and Exhibit E such that the Lessee may beneficially occupy and use the 7 New Improvements for the purposes for which it is intended and only trivial and insignificant items remain which do not affect the New Improvements as a whole. The date of issuance of the Certificate of Substantial Completion of the New Improvements shall be determined by the Director of Aviation. 5. Notification Lessee shall notify Lessor in writing of the completion of construction of the New Improvements within the time period identified on the Certificate of Substantial Completion. 6. Extension of Time to Complete If Lessee is delayed at any time in the progress of constructing the New Improvements by an act or neglect of Lessor, the time to complete the New Improvements shall be extended for such reasonable time as the Director of Aviation may determine. Notwithstanding any other provisions of this Lease, no adjustment shall be made to the Rent due from Lessee or the amount Lessee is required to expend under Section 6.A above and Lessee shall not be entitled to claim or receive any additional compensation as a result of or arising out of any delay, hindrance, disruption, force majeure, impact, or interference, foreseen or unforeseen, resulting in adjustment to timing of the performance of this Lease hereunder, except to the extent caused by the acts, omissions, failures, negligence, or fault of the Lessor. 7. Notice of Completion For the purposes of this Lease, the term “Notice of Completion” shall mean that the New Improvements have been completed to the satisfaction of the Airports Department, in accordance with the construction plans, specifications, Exhibit E and all building permits have been signed off by the City of Fresno Development Department. The date of issuance of the Notice of Completion of the New Improvements shall be determined by the Director of Aviation. F. “As Built” Drawings and Statement of Final Costs 1. Within ninety (90) days following completion of all of the Site Development and Construction Improvements, Lessee shall furnish the Director of Aviation with complete sets of “As Built” drawings and specifications, in electronic PDF and hard copy formats, and a verified statement of final costs (including engineering, architectural and inspection fees), together with receipted invoices for labor and materials and releases therefor, covering any and all such leasehold improvements and specifying the date on which such improvements were completed. 8 G. Remodel, Renovate or Refurbish the Leased Premises 1. During the term of this Lease, Lessee shall be able to remodel, renovate and refurbish the Leased Premises and the New Improvements, or any part thereof, and to build and construct new additions and improvements thereto and thereon subject to the other terms and conditions of this Lease, under the following conditions: i. For the exterior of the New Improvements and those portions of the Leased Premises surrounding the New Improvements, Lessee shall obtain the Director of Aviation’s prior written consent for any remodeling, renovation, refurbishment, or construction. ii. For the interior of the New Improvements, Lessee shall obtain the Director of Aviation’s prior written consent for any remodeling, renovation, refurbishment, or construction which has a dollar value of Five Thousand and No/100 Dollars ($5,000.00) or more, or which would in any way impact the electrical, plumbing, mechanical, communication systems or structure of the New Improvements. H. Reversion of Improvements or Restoration of Premises Upon the expiration or termination of this lease, Lessee agrees to quietly and peacefully surrender possession of the Leased Premises. At the sole discretion of the Director of Aviation, Lessee shall either: i. Relinquish the Leased Premises with all additions and improvements thereto to Lessor in the same condition as existed upon the Date of Notice of Completion. The Improvements, excluding trade fixtures therein (which shall remain the property of Lessee), shall be owned by the City upon the expiration or termination of this Lease; such improvements shall be given over to Lessor free and clear of any and all encumbrances, liens, claims, or demands of any nature or description whatsoever; or ii. Completely remove all improvements erected, constructed, and/or placed in, on or upon the Leased Premises with the land restored to an environmentally clean, properly graded condition free of weeds and rubbish. The complete cost of this restoration shall be borne solely by Lessee at no expense to Lessor whatsoever. The Director of Aviation shall notify Lessee within sixty (60) days of expiration or termination of this lease of his/her election. SECTION 7. MAINTENANCE, REPAIRS 9 A. Lessor’s Maintenance and Repair Obligations 1. Lessor hereby agrees to maintain in good repair and in a clean and orderly condition any common areas, taxiways, public aprons, runways, and public access areas, and other public areas of the Airport essential to Lessee's operations that conform with Lesso r's and applicable FAA construction specifications. B. Lessee’s Maintenance and Repair Obligations 1. Lessee shall, at all times during the life of this Lease, at Lessee's own cost and expense, keep and maintain the Leased Premises and all buildings, structures, paved surfaces including the leased ramp area, security fences, any security gates installed by Lessee during the life of this Lease, and any and all other improvements constructed, installed, and/or located in and/or on said premises in good order and repair, free of weeds and rubbish, and in a clean, sanitary, sightly and neat condition (Lessor shall have no obligation to provide any services whatsoever in this regard). 2. In the event Lessor deems any repairs required to be made by Lessee necessary and serves Lessee with written notice thereof, if, for any reason whatsoever, Lessee fails to commence such repairs and complete same with reasonable dispatch, Lessor may then make such repairs or cause such repairs to be made and SHALL NOT be responsible to Lessee for any loss or damage that may occur to Lessee's stock or business by reason thereof. If Lessor makes such repairs or causes such repairs to be made, Lessee agrees that the cost thereof shall be payable, AS ADDITIONAL RENT, along with the next monthly rental installment due hereunder after the completion of such repairs and the submission by Lessor to Lessee of a statement of such cost, or if no further rental installments are then payable, within thirty (30) days following submission by Lessor of any such statement. 3. Lessee acknowledges: (1) it has not relied on the representations of Lessor or any of Lessor’s employees, agents or representatives; (2) it has inspected the Leased Premises; and (3) it agrees to accept the Leased Premises “AS-IS”, “WHERE-IS” and “WITH ALL FAULTS” and in the condition in which such premises exist, including all known and unknown faults and/or deficiencies, recorded and/or unrecorded easements, on the Effective Date of this Lease. Lessee further agrees that the Leased Premises are suitable for Lessee’s intended uses of the Leased Premises, subject to Lessor's obligations under this Lease. C. Exclusive Use Premises With respect to the Leased Premises, Lessee shall, at its own cost and expense: 10 1. Have the right, and to the extent hereinafter provided, the obligation (in accordance with applicable laws and ordinances and other applicable provisions of this Lease) to make repairs to or replacements of the New Improvements or other facilities constructed or installed on the Leased Premises; and 2. Have the right to erect or install on the Leased Premises equipment or personal property necessary for the performance of any of Lessee’s operations, rights, and privileges provided for by this Lease; and 3. Have the right to construct and install on the Leased Premises any buildings, structures or improvements necessary for continuing operations and any additions to or extensions, modifications or improvements of the New Improvements and all other facilities (in accordance with applicable laws, regulations and ordinances and other applicable provisions of this Lease), subject to the approval of the Director of Aviation; and 4. Keep all fixtures, equipment and personal property, which are open to or visible to the general public, in a clean and orderly condition and appearance at all times (Lessee shall remove any of these items from public view if the Director of Aviation determines them to be unsightly); and 5. Provide and maintain (except for mobile firefighting equipment) all fire protection and safety equipment of every kind and nature required by any code, law, rule, order, ordinance, resolution or regulation; and 6. Provide, at its sole expense, all personnel or contractors (approved by the Director of Aviation) and its own equipment, all security protection for the Leased Premises in accordance with the Fresno Yosemite International Airport Security Plan and U.S. Department of Homeland Security Transportation Security Administration (TSA), or its successor agency regulations; provided, however, that in the event Lessee fails to provide security as herein set forth, Lessor shall provide all such personnel and equipment necessary, and Lessee shall reimburse Lessor for all actual costs and expenses incurred by Lessor for the supplying of such personnel and equipment; and 7. Control the conduct and demeanor of its employees and shall require its employees to wear uniforms where appropriate and display Airport security badges; and 8. Control all vehicular traffic in and among the areas where aircraft may be located, including the aircraft parking ramp, aircraft circulating and ramp vehicle services areas (exclusive of public roadways); take all precautions reasonably necessary to promote the safety of its passengers, employees, customers, business visitors and other persons; and employ such means as may be necessary to direct the movement of vehicular traffic in such areas, 11 including, but not limited to, any associated pavement markings that may be necessary. D. Safety of Operations and Repairs If the performance of any of the foregoing maintenance, repair, replacement or painting obligations of Lessee requires work to be performed where safety of operations are involved, Lessee agrees that it will, at its own expense, post guards or erect barriers or other safeguards in conformance with FAA safety specifications and approved by the Director of Aviation at such locations so as to provide for the safety of work performed. Lessee shall not perform any of the foregoing maintenance, repair, replacement, or painting obligations off of the Leased Premises. E. Failure to Repair by Lessee Should any property on the Leased Premises require repairs, replacements, rebuilding or painting, and Lessee fails to commence same after a period of ten (10) days following written notice from the Director of Aviation, or Lessee fails diligently to continue to completion of the repair, replacement, rebuilding or painting of all the property required to be repaired, replaced, rebuilt or painted by Lessee under the terms of this Lease, Lessor may, at its option, and in addition to any other remedies which may be available to it, repair, replace, rebuild or paint all or any of the property included in the said notice, the actual cost thereof to be paid by Lessee on demand. Lessee shall not be responsible for damage to or repair of any property on the Leased Premises caused by Lessor's failure to properly perform any of the maintenance, which it is required to perform under this Lease. F. Access In the interest of public safety or where the location or nature of the work performed warrant it, Lessor shall have the continuing right to temporarily deny Lessee's access to or egress from the Leased Premises or common areas, taxiways, runways, ramps, public aprons, public access areas and other public areas of the Airport in performing the work described herein. Lessor shall, however, provide alternate means of access or egress necessary for Lessee’s operations reasonably satisfactory to the Parties. SECTION 8. INSPECTION AND AUDIT BY LESSOR A. Entry by Lessor for Inspection 12 Lessor may enter upon the Leased Premises at any reasonable time during normal business hours for any purpose connected with the performance of Lessor's or Lessee's obligations hereunder, including observing the performance by Lessee of obligations under this Lease; provided however, Lessor may enter upon the Leased Premises at any reasonable time to determine the condition of the Leased Premises from a standpoint of safety. B. Records Upon reasonable written notice given by Lessor, Lessee shall furnish to Lessor true and accurate records relating to this Lease, including but not limited to, financial statements prepared in accordance with generally accepted accounting practices, reports, resolutions, certifications and other information as may be requested by the Lessor from time to time during the term of this Lease. Additionally, Lessor shall have the right, upon reasonable written notice given to Lessee, to cause an audit to be made, at Lessor’s expense, of the books and records of Lessee that relate to Lessee’s operations described in this Lease. Lessee agrees to keep all books and records relating to this Lease for a period of five (5) years after the end of the calendar year that such books and records pertain. The terms of this paragraph shall survive the termination or expiration of this Lease. SECTION 9. INSURANCE AND INDEMNIFICATION A. Indemnification 1. Lessee shall hold Lessor completely harmless and indemnify, protect and defend Lessor and Lessor's officials, officers, members, employees, agents and volunteers against any and all claims, judgments, fines, damages, demands, liabilities, suits, notices, costs and expenses (including all reasonable costs and expenses for investigation and defense thereof [including, but not limited to attorney fees, court costs and consultants' fees]), or any one, more or all of these, of any nature whatsoever, arising or a llegedly arising, directly or indirectly, out of, as a result of, or incident to, or in any way connected with: (1) Lessee's occupancy(ies) and/or use(s) of any part or all of the Leased Premises; (2) Lessee's exercise of any one, more or all of the rights and privileges herein granted; (3) any breach or default in the performance of any obligation on Lessee's part to be performed under the terms of this Lease; and/or (4) any act(s) or omission(s) on the part of Lessee and/or any officer(s), agent(s), employee(s), contractor(s), sub- contractor(s), servant(s), representative(s), tenant(s), or sub- lessees of Lessee during the life hereof, EXCEPT for those claims, judgments, fines, damages, demands, liabilities, suits, notices, 13 costs and expenses, or any of the se, caused SOLELY by the active negligence or willful misconduct of Lessor. 2. Lessor shall give to Lessee reasonable notice of any such claims or actions. 3. THE PROVISIONS OF THIS SECTION OF THIS ARTICLE SHALL SURVIVE THE EXPIRATION OR EARLY TERMINATION OF THIS LEASE. B. Exemption of Lessor: Lessee hereby specifically warrants, covenants and agrees that Lessor SHALL NOT be liable for injury to Lessee's business or any loss of income therefrom or for damage to the goods, wares, merchandise or other property of Lessee, Lessee's employees, patrons, invitees, or any other person whomsoever, in or about the leased premises, NOR shall Lessor be liable for injury to the person of Lessee, Lessee's servants, agents, employees, contractors, sub-contractors, tenants, sub-lessees, customers, or invitees, whether or not said damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, or from the leakage, breakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether or not the said damage or injury results from conditions arising in or on any part or all of the leased premises or in or on any of the improvement(s) and facilities appurtenant thereto located therein or thereon, or from other sources or places, and regardless of whether or not the cause of such damage or injury or the means of repairing the same is inaccessible to Lessee, EXCEPT where such injury, damage, and/or loss shall have been caused SOLELY by the active negligence or willful misconduct of Lessor. Lessee also covenants and agrees that Lessor SHALL NOT be liable for any damages arising from any act or neglect on the part of any third parties. C. Insurance 1. Insurance Requirements: Throughout the life of this Lease, Lessee shall, at Lessee's expense, obtain and at all times maintain in full force and effect such MINIMUM insurance as is set forth within paragraphs "a" and "b" of this sub-section 1, below, acceptable to Lessor’s Risk Manager or his/her designee. The insurance limits available to the City of Fresno, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured. a. AIRCRAFT LIABILITY: (1) Lessee shall carry Aircraft Liability Insurance 14 (including passengers) if Lessee is to be operating, maintaining or storing any owned aircraft at Airport. (2) Lessee shall carry non-owned Aircraft Liability Insurance if Lessee engages in the use and/or operation of any non-owned aircraft. (3) The following limits shall apply to ALL aircraft liability insurance: Bodily Injury Liability, EXCLUDING Passengers: $1,000,000.00 per occurrence; AND Passenger Bodily Injury Liability: A MINIMUM for each occurrence of at least an amount equal to $100,000.00 per passenger seat for the largest aircraft operated by Lessee; AND Property Damage liability: $500,000.00 per occurrence; OR Combined Bodily Injury and Property Damage Liability: A MINIMUM for each occurrence of at least an amount equal to the SUM of the minimum limits set forth above. b. GENERAL LIABILITY: AIRPORT OR "PREMISES" LIABILITY: $1,000,000.00 per occurrence. PRODUCTS OR "COMPLETED PRODUCTS/OPERATIONS" LIABILITY: $500,000.00 per occurrence. GROUND HANGARKEEPER'S LIABILITY: $1,000,000.00 per occurrence either INSIDE or OUTSIDE of hangar(s). c. ENDORSEMENTS: The insurance policy(ies) obtained and maintained in force by Lessee pursuant to the provisions of paragraphs 1a and 1b of this Article, above, shall contain the following endorsements: (1) Additional Insured: An additional insured endorsement in favor of City of Fresno, its officers, employees, officials, agents and volunteers. (2) Cancellation Notice: A 30-day written notice of cancellation and/or material change endorsement in favor of City of Fresno. (3) Primary and Non-contributory: Insurance afforded the 15 Lessee shall be primary, and no contribution shall be sought from Lessor. d. FIRE AND EXTENDED COVERAGE INSURANCE: In addition to the insurance specified within paragraphs 1a and 1b of this Article, above, Lessee shall also obtain and maintain in full force and effect a policy of FIRE AND EXTENDED COVERAGE INSURANCE protecting the Leased Premises in a sum sufficient to cover the TOTAL REPLACEMENT VALUE of ALL of the improvements located in or on same on the date the term hereof commences and any and all other improvements which may, at any time and from time to time during the life hereof, be constructed and/or installed therein or thereon by Lessee, and the "Replacement Value" of such coverage shall be maintained current throughout the life of this Lease. e. WORKER’S COMPENSATION INSURANCE COVERAGES AS REQUIRED BY THE CALIFORNIA LABOR CODE, WITH COMPLETE WAIVER OF SUBROGATION IN FAVOR OF LESSOR. D. Additional Insured and Notice of Cancellation or Material Change Endorsements: Any and all insurance policies required to be maintained by Lessee pursuant to the provisions of this section of this Article of this Lease, shall name the City of Fresno, California and its officers, officials, employees agents and volunteers as ADDITIONAL INSURED and shall contain an unqualified thirty (30) day NOTICE OF CANCELLATION OR MATERIAL CHANGE ENDORSEMENT in favor of the City of Fresno. Should any material change in liability limits occur, City must be notified immediately. E. Primary Coverage: SUCH INSURANCE AS SHALL BE MAINTAINED BY LESSEE PURSUANT TO THE INSURANCE PROVISIONS OF THIS LEASE SHALL BE ENDORSED AS BEING PRIMARY COVERAGE WHETHER OR NOT LESSOR, ITS OFFICERS, OFFICIALS, EMPLOYEES, AGENTS, OR VOLUNTEERS SHALL HAVE OTHER INSURANCE AGAINST ANY LOSS COVERED BY SUCH POLICIES and, PRIOR TO THE EXPIRATION OF ANY AND ALL SUCH POLICIES, LESSEE SHALL ENSURE THAT LESSEE'S INSURER(S) PROVIDE LESSOR WITH EVIDENCE OF RENEWALS/CONTINUATIONS THEREOF. F. Evidence of Insurance: It is the responsibility of Lessee to ensure that Lessee's insurer(s) provide and maintain current with Lessor valid "Certificates of Insurance" and 16 additional insured endorsements which shall list the following as additional insured: the City of Fresno, its airports, agents, officers, officials, employees and volunteers (or such other documentation as Lessor, at its option, at any time and from time to time during the life of this Lease, may reasonably require, including copies of policies), which shall clearly evidence the fact that insurance coverage(s) and limit(s) equal to or, at Lessee's option, more extensive/greater than those hereinabove set forth are, without lapse(s) in coverage(s), maintained in full force and effect by Lessee throughout the life of this Lease. Such evidence of insurance shall be provided Lessor at the following address: City of Fresno Airports Department 4995 E. Clinton Way Fresno, CA 93727 or to such other address as Lessor may, from time to time, provide Lessee in writing during the life hereof. G. Additional Insurance: With reference to the above-stated minimum insurance requirements, it is mutually understood, acknowledged and expressly agreed that Lessor shall have the right, at any time and from time to time during the life of this Lease, to reasonably require Lessee to purchase and maintain other and/or additional reasonable types/amounts of insurance should Lessor reasonably determine that, with the passing of time and/or changing facts and/or circumstances, the minimum types and amounts of coverages initially required of Lessee under this Section of this Article of this Lease shall be inadequate to cover the potential liability resulting from EITHER Lessee's uses and/or occupancies of the airport and/or the leased premises OR Lessee's activities/operations in, on, to or from same. SECTION 10. TAXES A. Taxes and Assessments: In addition to the rentals, fees, and charges herein set forth, Lessee shall pay, as and when due (but not later than fifteen [15] days prior to the delinquency date thereof) any and all taxes and general and special assessments of any and all types or descriptions whatsoever which, at any time and from time to time during the term of this Lease, may be levied upon or assessed against Lessee, the leased Premises and/or any one or more of the improvements located therein or th ereon and appurtenances thereto, other property located therein or thereon belonging to Lessor or Lessee, and/or upon or against Lessee's interest(s) in and to said Premises, improvements and/or other property, including possessory interest as and when such be applicable to Lessee hereunder. 17 NOTE: Any interest in real property which exists as a result of possession, exclusive use, or a right to possession or exclusive use of any real property (land and/or improvements located therein or thereon) which is owned by the City of Fresno (Lessor) is a taxable possessory interest, unless the possessor of interest in such property is exempt from taxation. With regard to any possessory interest to be acquired by Lessee hereunder, Lessee, by its signatures hereunto affixed, warrants, stipulates, confirms, acknowledges and agrees that, prior to its executing this lease, Lessee either took a copy hereof to the office of the Fresno County Tax Assessor or by some other appropriate means, independent of Lessor or any employee, agent, or representative of Lessor, determined, to Lessee's full and complete satisfaction, how much Lessee will be taxed, if at all. SECTION 11. SUBLETTING AND ASSIGNMENT A. Right to Sublease Provided that such sublease does not violate any of the material terms or provisions of this Lease, including authorized use, Lessee shall have the right to sublet any part of the Leased Premises, during the term of this Lease. Any such subletting shall not be considered a release of Lessee from any of its obligations under this Lease. B. Written Consent If Lessee should desire to sublet the Leased Premises as a whole, Lessee may do so only after securing the written consent of Lessor. A subletting of the whole Leased Premises, if permitted, shall not releas e Lessee from its obligations hereunder. C. Sublease Subject to Terms of this Lease Should Lessee sublease a portion of the Leased Premises or specific permanent improvements constructed on the Leased Premises, the terms of any sublease agreement of the Leased Premises shall be expressly subject to the terms of this Lease and Lessee shall provide Lessor with a copy of any sublease agreement entered into with any sublessee within fifteen (15) days after the sublease agreement has been entered into, along with any sublessee’s name, address and telephone number. D. Right to Assignment Lessee shall not assign this Lease, in whole or in part, without the prior written consent of Lessor. An assignment shall not be considered a release of Lessee of any of Lessee's obligations under the terms of the Lease. Lessor reserves the right to require a new agreement with the Assignee which may consist of new terms, rates, and conditions for the leasehold as a required condition of the assignment. 18 E. Payment Regarding Sublease or Assignment In the event of a sublease or assignment, sublessor or assignor shall pay Lessor the greater of: (i) fifty percent (50%) of the excess sublease or assignment revenue attributable to ground rent over and above what the Lessee pays the Lessor for the sublease or assigned premises or (ii) fifty percent (50%) of the difference between the ground Lease rent (as distinguished from any rent that may be paid for the New Improvements) being paid at the time of the sublease or assignment and the appraised market ground lease rent for comparable properties at the Airport. Notwithstanding the foregoing, Lessee shall not be required to share excess sublease rentals with Lessor as long as Lessee continues to occupy space within the New Improvements. Lessor acknowledges that the amounts, if any, payable to Lessor pursuant to this Section 11 shall be net of any and all costs and expenses incurred by Lessee in connection with any assignment or sublease. SECTION 12. UTILITIES A. Costs and Expenses 1. During the term hereof, Lessee shall make its own arrangements for and pay all charges for water, sewer, gas, electricity, telephone, trash collection and other utility service(s) (“Utilities”) supplied to and used on the Leased Premises. All such charges shall be paid before delinquency, and Lessor and the Leased Premises shall be protected and held harmless by Lessee therefrom. Should Lessee make arrangements for any Utilities through the City's Finance Department's Utilities Billing and Collection Section (e.g. water, sewage, and/or solid waste [trash] disposal), Lessee agrees to pay to Lessor, monthly, upon receipt of the billing(s) therefor at the then current rates as established from time to time by ordinances of Lessor for such services, such sum(s) as shall be due for any and all such services provided to the Leased Premises during the term hereof. 2. Upon Lessee's obtaining of any and all required permits and the payment of any required charges or fees, Lessee is hereby granted the right to connect to any and all storm drains, sanitary sewers and/or water and utility outlets as shall be available and/or provided to service the Leased Premises. 3. The construction/installation of any and all connections to any and all utility systems, including, without limitation, water service lines and associated fixtures, piping, plumbing and hardware, sewer connector lines, and storm drain inlets, feeder lines, etc., shall be the obligation of Lessee at Lessee's own cost and expense. 19 4. Lessor shall not be liable to Lessee for any interruption in or curtailment of any utility service, nor shall any such interruption or curtailment constitute a constructive eviction or grounds for rental abatement in whole or in part hereunder. SECTION 13. LIENS Lessee shall cause to be removed any and all liens of any nature arising out of or because of any construction, renovation, or remodeling performed by it or any of its contractors or subcontractors on the Leased Premises, or arising out of or because of the performance of any work or labor by it or them, or the furnishing of any material to it or them for use in making improvements on the Leased Premises. Lessee may, however, contest the validity or amount of such liens. The foregoing provision is not intended to prevent any reasonable method of construction financing by Lessee. SECTION 14. TERMINATION BY LESSOR/EVENTS OF DEFAULT Lessor reserves the right to terminate this Lease before the end of the Term or during any option period if any of the following circumstances should occur: A. Failure to Pay Lessee shall fail to make any payment due Lessor under this Lease on the date that same is due, as described in Section 4.B., and shall not cure such failure within thirty (30) days after written notice thereof to Lessee. After such a period of default, the Director of Aviation may deliver or cause to be delivered to Lessee a written notice of termination of this Lease. Lessee's receipt of such written notice shall be sufficient to terminate this Lease. Receipt shall be defined as the third (3rd) business day following deposit in regular U.S. Mail of a certified, postage pre -paid envelope containing notice of termination to be delivered to Lessee's address as indicated in Section 43 herein. B. Material Terms Other than as set forth in Section 14.A above, if Lessee shall fail to meet and observe any material term, condition or covenant of this Lease and shall fail to cure the same within thirty (30) days after receipt of written notice thereof by the Director of Aviation to Lessee, or, if such failure cannot reasonably be cured within the said thirty (30) days, Lessee shall not have commenced to cure such failure within said thirty (30) period or shall not have commenced to cure such failure within such thirty (30) day period with reasonable diligence and good faith. C. Insolvency 20 Lessee shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors, or a receiver or trustee shall be appointed for all or substantially all of the assets of Lessee. D. Bankruptcy Lessee shall file a voluntary petition under any section or chapter of the National Bankruptcy Act, as amended, or any similar law or statute of the United States or any State thereof, or an involuntary petition in bankruptcy is filed against Lessee and is not dismissed within sixty (60) days after such filing. E. Abandon, Desert, or Vacate Leased Premises Lessee shall abandon, desert, or vacate the Leased Premises, except as a result of a Force Majeure event as set forth in Section 33 of this Lease, provided, however, that Lessee's failure to occupy the Leased Premises due to a condition described in Section 19.A or Section 19.C under this Lease shall not constitute an event of default hereunder and shall not permit Lessor to terminate this Lease. F. Non-Wavier Lessor’s failure to exercise its right to terminate this Lease upon determination of a default shall not waive Lessor’s right to terminate this Lease at any subsequent time during the remaining term of this Lease unless such default has been cured in all material respects. SECTION 15. REMEDIES FOR EVENTS OF DEFAULT 1. Abandonment: If Lessee abandons the Leased Premises, this lease shall continue in effect. Lessor shall not be deemed to terminate this Lease as a result of such material default and breach other than by written notice of termination served upon Lessee by Lessor, and Lessor shall have all of the remedies available to Lessor under Section 1951.4 of the Civil Code of the State of California so long as Lessor does not terminate Lessee's right to possession of the Leased Premises, and Lessor may enforce all of Lessor's rights and remedies under this Lease, including the right to recover the rent as it becomes due under this Lease. After abandonment of the Leased Premises by Lessee, Lessor may, at any time thereafter, give notice of termination. 2. Termination: Following the occurrence of any material default and breach of this Lease by Lessee as set forth within this Section, 21 above, Lessor may then immediately, or at any time thereafter, terminate this Lease by service of a minimum of ten (10) days advance written notice to such effect upon Lessee and this lease shall terminate at 11:59:59 p.m., on the termination date specified within such notice. 3. Such notice shall set forth the following: a. The default and breach which resulted in such termination by Lessor; and i. Demand For Possession, which, in the event only ten (10) days advance notice shall be given by Lessor, shall be effective at 12:00:01 A.M., on the eleventh (11th) calendar day following the date on which the notice in which such demand is contained shall be sufficiently served upon Lessee by Lessor in conformity with the "Notice" provisions of this Lease; or, if more than the minimum number of days advance notice shall be given, at 12:00:01 a.m., on the next day following the date specified within such notice as being the date of termination hereof. b. Such notice may contain any other notice which Lessor shall be required or desire to give under this Lease. 4. Possession: Following termination of this Lease by Lessor pursuant to the provisions of this Section, without prejudice to other remedies Lessor may have by reason of Lessee's default and breach and/or by reason of such termination, Lessor may: a. Peaceably re-enter the Leased Premises upon voluntary surrender thereof by Lessee or remove Lessee and/or any other persons and/or entities occupying the Leased Premises therefrom, using such legal proceedings as may be available to Lessor under the laws or judicial decisions of the State of California; b. Repossess the Leased Premises or re-let the Leased Premises or any part thereof for such term (which may be for a term extending beyond the term of this Lease) at such rental and upon such other terms and conditions as Lessor in Lessor's sole discretion shall determine, with the right to make reasonable alterations and repairs to the Leased Premises; and c. Remove all personal property therefrom and store all personal property not belonging to Lessor in a public warehouse or elsewhere at the cost of and for the account of Lessee. 5. Recovery: Following termination of this Lease by Lessor pursuant 22 to the provisions above, Lessor shall have all the rights and remedies available to Lessor under Section 1951.2 of the Civil Code of the State of California. The amount of damages Lessor may recover following such termination of this lease shall include: a. The worth at the time of award of the unpaid rent which had been earned at the time of termination of this Lease; b. The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination of this Lease until the time of award exceeds the amount of such rental loss that Lessee proves could have been reasonably avoided; c. The worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss for the same period Lessee proves could be reasonably avoided; and d. Any other amount necessary to compensate Lessor for all the detriment proximately caused by Lessee's failure to perform Lessee's obligations under this Lease or which in the ordinary course of things would be likely to result therefrom. 6. Additional Remedies: Following the occurrence of any material default and breach of this Lease by Lessee as set forth within this Article, above, in addition to the foregoing remedies, Lessor may maintain Lessee's right to possession, in which case this Lease shall continue in effect whether or not Lessee shall have abandoned the Leased Premises and, so long as this Lease is not terminated by Lessor or by a decree of a court of competent jurisdiction, Lessor shall be entitled to enforce all of Lessor's rights and remedies under this Lease, including the right to recover the rent as it becomes due thereunder and, during any such period, Lessor shall have the right to remedy any default of Lessee, to maintain or improve the Leased Premises without terminating this Lease, to incur expenses on behalf of Lessee in seeking a new Lessee, to cause a receiver to be appointed to administer the Leased Premises, and to add to the rent payable hereunder all of Lessor's reasonable costs in so doing, with interest at the maximum reasonable rate then permitted by law from the date of such expenditure until the same is repaid. 7. Other: In the event Lessee causes or threatens to cause a breach of any of the covenants, terms or conditions contained in this Lease, Lessor shall be entitled to obtain all sums held by Lessee, by any trustee or in any account provided for herein, to enjoin such breach or threatened breach and to invoke any remedy allowed at law, in equity, by statute or otherwise as though re-entry, summary 23 proceedings and other remedies were not provided for in this Lease. 8. Cumulative Remedies: Each right and remedy of Lessor provided for in this Article or now or hereafter existing at law, in equity, by statute or otherwise shall be cumulative and shall not preclude Lessor from exercising any other rights or from pursuing any other remedies provided for in this Lease now or hereafter available to Lessor under the laws or judicial decisions of the State of California. 9. Indemnification: Nothing contained within this Article affects the right of Lessor to indemnification by Lessee, as elsewhere within this Lease provided, for liability arising from personal injuries or property damage prior to the termination of this Lease. SECTION 16. SURVIVAL OF THE OBLIGATION OF LESSEE A. In the event that this Lease is terminated in accordance with the provisions of this Lease, and in the event that Lessor has re -entered, regained or resumed possession of the Leased Premises, all rent obligations of Lessee under this Lease shall survive such term ination or cancellation, re-entry, regaining or resumption of possession and shall remain in full force and effect for the full term of this Lease, and the amount or amounts of rent or charges shall become due and payable to Lessor to the same extent, at the same time or times and in the same manner as if no termination, cancellation, re -entry, regaining or resumption of possession had taken place. B. In the event that this Lease is terminated in accordance with the provisions of this Lease, and in the even t that Lessor has re-entered, regained or resumed possession of the Leased Premises, all of Lessee’s environmental obligations under this Lease shall survive such termination or cancellation, re-entry, regaining or resumption of possession and shall remain in full force and effect for the full term of this Lease. C. Lessor, upon termination or cancellation, or upon re -entry, regaining or resumption of possession pursuant to this Lease, may occupy the Leased Premises or may relet the Leased Premises, and shall have the right to permit any person, firm or corporation to enter upon the Leased Premises and use the same. Such reletting may be of the entire Leased Premises or a part thereof, or of the Leased Premises or a part thereof together with other space, and for a period of time the same as or different from the balance of the term remaining under this Lease, and on terms and conditions the same or different from those set forth in this Lease. Lessor shall, upon termination or cancellation, or upon re-entry, regaining or 24 resumption of possession pursuant to this Lease, have the right to repair or to make structural or other changes to the Leased Premises, including changes which alter the character of the Leased Premises and the suitability thereof for the purposes of Lessee under this Lease, without unreasonably affecting or altering or diminishing the value of the Leased Premises or the obligations of Lessee hereunder. Any reletting shall not be construed to be an acceptance of surrender. Lessor shall attempt to relet the Leased Premises as soon as reasonably possible. D. In the event of any reletting or any actual use and occupancy by Lessor (the mere right to use and occupy not being sufficient, however) there shall be credited to the account of Lessee against its survived payment obligations under this Lease any amount actually received by or accruing to Lessor from any lessee, licensee, permittee or other occupier in connection with the use of the Leased Premises or portion t hereof during the balance of the Lease as the same is originally stated in this Lease, or from the market value of the occupancy of such portion of the Leased Premises as Lessor may receive or accrue for its benefit during such period of actual use and occupancy; provided however, notwithstanding the value of any amounts received by Lessor, Lessor shall never owe Lessee for any actions in this Section 16.D. SECTION 17. ADDITIONAL RENT AND CHARGES If Lessor has paid any sum or sums, or has incurred any ob ligations or expense, which Lessee has agreed to pay or reimburse Lessor for, or Lessor is required to pay any sum or sums or incurs any obligations or expense by reason of the failure, neglect or refusal of Lessee to perform or fulfill any one or more of the conditions or due to regulatory fines assessed to Lessor which are the result of actions or inactions of Lessee or of Lessee’s failure to comply with Federal, State o r Local regulations, covenants or agreements contained in this Lease or as a result of any act or omission of Lessee contrary to the conditions, covenants and agreements of this Lease, Lessee agrees to pay the sum or sums so paid or the expense so incurred, including all interest, costs, damages and penalties, and the same may be added to any installment of rent thereafter due under this Lease. Each and every part of the additional sums incurred under this provision shall constitute additional rent, recoverable by Lessor in the same manner and with the same remedies as if it were originally a part of the basic rental. SECTION 18. QUIET ENJOYMENT A. Lessor covenants that as of the Effective Date of this Lease, it has good, right and lawful authority to execute this Lease, that Lessor has good and indefeasible title to all lands, improvements and related facilities, including all premises leased hereunder free and clear of all liens, claims and encumbrances, and that throughout the term hereof, Lessee shall have, hold and enjoy peaceful and uninterrupted possession of the premises 25 leased hereunder, subject always to the payment of the rent and other charges and the performance of the covenants, as herein provided to be paid and performed by Lessee. These covenants extend to and shall be enforceable by Lessee and, in the event of Lessee’s def ault, its sublessees and permitted assigns. B. Notwithstanding any provision of this Lease, Lessor expressly reserves its proprietary rights, whatever they may be and upon reasonable advance notice to Lessee, to impose reasonable regulations which might have the effect of limiting Lessee’s operations during the term of this Lease, provided such regulations are imposed for the purpose of promoting the safety and welfare of the citizens of the City of Fresno. It is understood that Lessor’s position is that Lessor is not liable to Lessee for any damages resulting from compliance with the regulations by Lessee. However, it is understood that Lessee reserves the right, whatever it may be, to contest any such regulations and protect its interests. C. Lessee understands and acknowledges that Lessor is attempting to control or reduce the level of noise in neighborhoods near the Airport. Therefore, Lessee agrees that it shall: (i) undertake good faith efforts to control and reduce as much as is practicable the noise eman ating from operations of the Leased Premises or in conjunction with the activities conducted thereon; (ii) conduct all of its operations and activities in a manner having due regard for noise levels in neighborhoods in close proximity to the Airport; and (iii) shall at all times act in good faith to cooperate with and support Lessor in its efforts to reduce noise from the Airport's operations. SECTION 19. TERMINATION BY LESSEE Before the end of the Term, Lessee may terminate this Lease and any or all of its obligations hereunder at any time that Lessee is not in default in the payment of any amounts due to Lessor by giving Lessor sixty (60) days' written notice upon or after the happening of any one of the following events or Lessee may elect to abate rental and extend the Term as provided in this Section 19: A. Use of Airport for National Defense The assumption by the United States Government, or any agency or instrumentality thereof, of the operations, control or use of the Airport for National Defense in such a manner as to preclude Lessee, for a period of ninety (90) days or more, from using such Airport in the conduct of its business. Lessor shall not be liable to Lessee if th e latter is so dispossessed, but for any time that such takes place, the rental required of Lessee shall be abated, and that period of time shall be added as an extension of the Term. The foregoing provision is not intended to waive any rights or privileges which either Lessor or Lessee may possess as to compensation of any kind from the United States Government, or any 26 agency or instrumentality thereof for such an assumption of use or control of the Airport as is described in this Section 19. B. Material Default A material default on the part of Lessor to meet and observe any of the covenants herein contained, if such default has continued for a period of one hundred and twenty (120) days or more after written notice to Lessor by Lessee, unless Lessor has begun, and is continuing, in good faith, to remedy the default in such interval. C. Public Health and Safety Where a public health or safety demand causes Lessor to restrict Lessee’s full and unrestricted access and egress to and from the Leased Premises or other public airport facilities in such a manner that the Leased Premises are not fit for their intended purpose for a period of ninety (90) days or more, the rent required of Lessee shall be abated during any such restricted period and that period of time shall be added as an extension of the term of this Lease. SECTION 20. NO WAIVER OF RIGHT TO DECLARE FORFEITURE Any failure or neglect of Lessor or Lessee at any time to declare a forfeiture of this Lease for any breach or default whatsoever hereund er shall not be taken or considered as a waiver of the rights thereafter to declare a forfeiture for like or other or succeeding breach or default. SECTION 21. LESSEE'S RIGHT TO REMOVE PROPERTY A. Right to Remove Property Lessee shall be entitled, during the term of this Lease and upon termination hereof, to remove from the Leased Premises, or any part thereof, all personal property, trade fixtures, tools, machinery, equipment, portable buildings, materials and supplies placed thereon by it; provided that: (i) Lessee shall repair all damage resulting from such removal and (ii) Lessee shall not owe Lessor any rental, fees or additional rental, pursuant to the Lease. Lessor will allow Lessee not more than thirty (30) days after the termination date hereof f or such removal unless additional time is mutually agreed upon. B. Failure to Remove Property If Lessee fails to remove its property within thirty (30) days after the termination of or expiration of this Lease, Lessor may remove such property to a public warehouse for deposit or retain the same in its own possession at the cost of, and for the account of Lessee, without becoming liable for any loss or damage which may be occasioned thereby. If Lessee fails to take possession and 27 remove such property, after paying any appropriate rental or storage fees, within sixty (60) days after termination of the Lease, the property shall be deemed to be abandoned and Lessor may dispose of same as required by law. In the event Lessor shall remove or cause to be removed a ny personal property from the Leased Premises, pursuant to this Section 21.B, Lessor shall not be held liable or responsible for any damage incurred to Lessee’s personal property as a result of such removal. C. Public Storage Facility In the event Lessor assumes possession of the Leased Premises prior to lease termination, Lessor may remove all of Lessee’s property from the Leased Premises and store the same in a public storage facility or elsewhere at the cost of, and for the account of, Lessee, without becoming liable for any loss or damage which may be occasioned thereby. SECTION 22. SURRENDER OF PREMISES Lessee covenants and agrees to yield and deliver peaceably to Lessor possession of the Leased Premises, on the date of cessation of the letting, whet her such be by termination, expiration or otherwise, promptly and in as good condition as at the commencement of the letting, except for reasonable wear and tear arising from the use of the Leased Premises, to the extent permitted elsewhere in this Lease a nd except for damage or destruction by fire or casualty not caused by Lessee's negligence. SECTION 23. CONDEMNATION A. Condemnation or Eminent Domain If, during the term of this Lease, as the same may be extended under the terms hereof, or otherwise by agreement of the parties hereto, the entire Leased Premises shall be taken by condemnation or eminent domain proceedings, and such taking relates to the entire fee simple of the Leased Premises, as well as the right, title and interest of Lessee, then this Lease shall terminate effective as of the effective date of such taking, and all rights, titles, interests, covenants, agreements and obligations of the parties hereto thereafter accruing shall cease and terminate except as hereinafter set forth. In the event of such taking, the entire compensation and damages (if not apportioned by the condemnation decree) shall be fairly and equitably apportioned between the Parties in accordance with respective damage and loss sustained by the fee simple estate and the leasehold estate granted hereunder. If, during the term of this Lease, a portion of the Leased Premises, shall be taken and Lessor and Lessee mutually agree that the remaining portion of the Leased Premises can be used for the uses permitted under this 28 Lease, then the Lease will continue and the rental thereafter payable by Lessee shall be reduced in the same proportion as the area of the part taken by condemnation shall bear to the total area of the Leased Premises, including value of the improvements immediately prior to the condemnation; provided, however, that if Lessee, in its discretion, determines that so much of the Leased Premises has been taken as to materially impair the operation of Lessee's business, Lessee shall have the option to terminate this Lease as of the date of such taking by giving written notice to Lessor of termination within fifteen (15) days after possession of such part has been taken, whereupon this Lease shall be of no further force or effect, and Lessor and Lessee shall be rel ieved of any obligations or liabilities under this Lease as of the date of such taking. Any compensation and damages that may be the result of such taking shall (if not apportioned by a condemnation decree) be fairly and equitably apportioned between the Parties. SECTION 24. NON-DISCRIMINATION A. Lessee, for itself, its successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this Lease for a purpose for which a Department of Transportation (“DOT”) program or activity is extended or for another purpose involving the provisions of similar services or benefits, Lessee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended. B. Lessee, for itself, its successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land that: (i) no person on the grounds of race, color, national origin, or disability shall be excluded from participation in, denied the benefits of or be otherwise subjected to discrimination in the use of said facilities; (ii) in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, national origin, or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and (iii) Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended. C. Lessee ensures that it will comply with pertinent statutes, executive order s and such rules as are promulgated to ensure that no person shall, on the 29 grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from federal assistance. This provision obligates Lessee or its transferee for the period during which federal assistance is extended to the airport program, except where federal assistance is to provide, or is in the form of personal property or real property or interest therein or structures or improvements thereon. In these cases, the provision obligates Lessee or any transferee for the longer of the following periods: (i) the period during which the property is used by the sponsor or any transferee for a purpose for which federal assistance is extended, or for another purpose involving the provision of similar services or benefits or (ii) the period during which the airport sponsor or any transferee retains ownership or possession of the property. D. Lessee agrees to ensure that disadvantaged business enterprises as defined in 49 CFR Parts 23 and 26 have the maximum opportunity to participate in the performance of contracts financed in whole or in part with federal funds provided under this Lease. In this regard, Lessee shall take all necessary and reasonable steps in accordance with 49 CFR Parts 23 and 26 to ensure that disadvantaged business enterprises have the maximum opportunity to compete for and perform such contracts. Lessee shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of DOT -assisted contracts. E. As a condition of this Lease, Lessee covenants that it will take all necessary actions to insure that, in connection with any work under this Lease, Lessee, its associates and subcontractors, will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex or disability unrelated to job performance, either directly, indirectly or through contractual or other arrangements. Lessee shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. §§12101-12213, as amended. In this regard, Lessee shall keep, retain and safeguard all records relating to this Lease or work performed hereunder for a minimum period of three (3) years from final lease completion, with full access allowed to authorized representatives of Lessor, upon request, for purposes of evaluating compliance with this and other provisions of this Lease. F. In the event of Lessee's breach of any of the above nondiscrimination covenants, Lessor, according to the provisions of this Lease, shall have the right to terminate this Lease and to re-enter and repossess the Leased Premises and the facilities thereon, and hold the same as if the Lease had never been made or issued. SECTION 25. SIGNS 30 A. Approval of Signs All exterior signs on the Leased Premises shall comply with the pertinent ordinances of the City of Fresno, and also shall be approved by the Director of Aviation. Unless otherwise specifically authorized, all exterior signs on the Leased Premises shall conform in general appearance to the existing signs displayed at the Airport. B. Removal of Signs Upon the expiration or termination of this Lease, Lessee shall remove, obliterate or paint out, as required by the Director of Aviation, any and all signs and advertising on the Leased Premises if pertaining to Lessee, and in this regard, Lessee shall restore the Leased Premises to the same condition as prior to the placement thereon of any signs or advertising, ordinary wear and tear excepted. In the event that Lessee fails to remove, obliterate or paint out each and every sign or advertisement of Lessee the Director of Aviation may, at his or her option, have the necessary work performed at the expense of Lessee, and the charge therefore shall be paid by Lessee to Lessor upon demand. SECTION 26. GOVERNMENTAL REQUIREMENTS - RULES AND REGULATIONS A. Except as otherwise set forth herein, Lessee agrees to obtain, from all governmental authorities having jurisdiction, all licenses, certificates and permits necessary for the conduct of its operations on the Leased Premises and to keep them current. B. In conducting those operations perm itted on the Leased Premises as set forth in Section 5, throughout this Lease, and in construction and installation of facilities and improvements, Lessee agrees to comply with all present and future federal, state, and local laws, statutes, orders, rulings, and rules and regulations, and amendments thereto, including, but not limited to, any laws, statutes, orders, and rules and regulations cited in any grant assurances agreed to by the Lessor in accepting any grants pursuant to the Airport Improvement Program created by the Airport and Airway Improvement Act of 1982 (Public Law 97-248), as amended or replaced by successor programs. C. Lessor has established, and may, from time to time, establish or modify, rules and regulations pertaining to the Airport and Lessee covenants to observe all such rules and regulations. Nothing in this Section 26 shall be construed to imply that Lessee is waiving its right to contest or challenge such rules and regulations. 31 SECTIION 27. No Representations or Warranties Subject to Lessor's obligations under this Lease, Lessee acknowledges and agrees by its acceptance hereof that the Leased Premises is conveyed "as is, where is", in its present condition with all faults and subject to all easements, claims of easements and deed restrictions whether recorded or unrecorded in the public records, and that Lessor has not made and does not hereby make and specifically disclaims any representations, guarantees, promises, covenants, agreements, or warranties of any kind or charact er whatsoever, unless otherwise provided for herein, whether express or implied, oral or written, past, present, or future of, as to, concerning or with respect to the nature, quality or condition of the Leased Premises, the income to be derived, the suita bility of the Leased Premises for uses allowed under this Lease, or merchantability or fitness for a particular purpose. SECTION 28. ENVIRONMENTAL CONCERNS AND MONITORING REQUIREMENTS A. Lessee hereby releases, discharges and holds Lessor harmless from, and agrees to indemnify Lessor against claims, liabilities, suits, damages, expenses and fines arising out of or resulting from any release, discharge, spill, contamination or pollution by or from hazardous wastes or substances on the Leased Premises caused by or arising from the failure of Lessee, its sublessees, contractors, subcontractors, agents, officers invitees or representatives to comply with any applicable Governmental Regulations (as defined herein). Lessee shall have the sole responsibility for the remediation of, and shall bear all costs and liabilities for any release, discharge, spill, contamination or pollution by or from hazardous wastes or substances: (i) caused by Lessee, its sublessees, contractors, subcontractors, agents, officers invitees and representatives, or (ii) occurring on or under the Leased Premises during the term of this Lease. Lessee's obligations and liabilities under this paragraph shall continue only if and so long as Lessee is and remains responsible for any such release, spill, discharge, or contamination of hazardous substances or wastes as described in the immediately preceding sentence. Notwithstanding any provision in this Section 28 or any other provision of this Lease, Lessee shall not be liable for any release, spill discharge, contamination or pollution by or from hazardous wastes or substances (a) occurring or existing prior to the Effective Date of this Lease, unless caused by Lessee; (b) caused by Lessor, its contractors, subcontractors, agents, officers, invitees, or representatives; or (c) occurring after expiration or earlier termination of the term of this Lease, and not caused by Lessee or a sublessee or a customer of either. In addition, notwithstanding any provision in this Section 28 or any other provision of this Lease, Lessee shall not be liable for any release, spill, discharge, contamination or pollution by or from hazardous wastes or substances resulting from any underground storage tanks, pits or hydrant systems under the Leased 32 Premises that are not otherwise owned or operated by Lessee. B. Lessee acknowledges that its uses of the Leased Premises and the operations, maintenance and activities conducted thereon may be subject to federal, state and local environmental laws, rules and regulations, collectively referred to as “Governmental Regulations”, including with limitation, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), as amended, the Resource Conservation and Recovery Act (“RCRA”), as amended, the Clean Water Act, as amended, the Clean Air Act, as amended, and other regulations promulgated thereunder by any federal, state or local governmental agencies. As a material covenant of this Lease, Lessee, at its sole expense, shall comply with all such present and future Governmental Regulations applicable to Lessee's construction, operations, maintenance, use and activities on the Leased Premises. C. Lessee shall, at its sole expense, make all subm issions and provide all information to the appropriate governmental authorities of the state , the U.S. Environmental Protection Agency (“USEPA”) and any other local, state or federal authority or agency which requires submission of information regarding any spill, discharge or other reportable release of hazardous wastes or substances for which Lessee or its sublessee is responsible on the Leased Premises during the term of this Lease. Lessee shall provide copies of all such submissions and information to the Director of Aviation or his/her designated agent. Lessor shall, at its sole expense, make all such submissions and provide all such information to the appropriate governmental authorities regarding any spill, discharge or other reportable release of hazardous wastes or substances for which lessor is responsible. D. Should a governmental authority having jurisdiction over environmental matters, including the Lessor, determine that a response or plan of action be undertaken due to any spill, discharge, contamination, release or pollution of hazardous substances or wastes for which Lessee is responsible on the Lease Premises during the term of this Lease, whether sudden or gradual, accidental or intentional, Lessee shall, at its sole expense, prepare and submit the required plans and undertake, implement and diligently perform the required action, response or plan to completion in accordance with the applicable rules and direction of such governmental authority or authorities and to their reasonable satisf action. Lessor shall, at its sole expense, prepare and submit any such required plans and undertake, implement and diligently perform any such required action, response or plan to completion in accordance with the applicable rules and direction of governmental authority or authorities due to any spill, discharge, contamination, release or pollution of hazardous substances or wastes for which Lessor is responsible. 33 E. Lessee shall, at its own expense, demonstrate and maintain any required records, reports and financial responsibility in accordance with pertinent laws, rules and regulations regarding Underground Storage Tanks (USTs) at any new aircraft fueling facilities. Upon request by Lessor, Lessee shall annually provide Lessor with documentation demonstra ting financial responsibility concerning environmental obligations imposed upon Lessee by this Lease. In the event Lessee's financial responsibility should lapse at any time during the leasehold estate or mode of financial responsibility change, Lessee shall immediately notify the Director of Aviation or his/her designated agent. F. Lessee's obligations under this Section shall survive any assignment or subletting of the Leased Premises, provided, Lessor does not specifically release Lessee from its obligations herein through Lessor's consent to assignment or sublease. Furthermore, Lessee's obligations under this Section shall survive the expiration or earlier termination of this Lease as to any activity or omissions which occurred during the term of the Lease. G. Prior to Lessee’s start of construction on the New Improvements, Lessee shall have the right to conduct a Site Assessment or such other testing of the Leased Premises as Lessee deems necessary to determine the existing environmental condition of the Leased Premises (collectively, the "Environmental Reports"). Lessor and Lessee agree that the results of the Environmental Reports shall establish a baseline representing the environmental condition of the Leased Premises existing prior to the Term, which can be compared to future Environmental Reports to determine the changes, if any, in the environmental condition of the Leased Premises during the Term. H. The term “hazardous wastes” is used herein as it is defined in 42 U.S.C. Section 6901 et seq. The term "hazardous substances" is used herein as it is defined in CERCLA. These terms shall also include, for the purposes of the Lease, any substance requiring special treatment, handling, manifesting and records according to a governmental authority. SECTION 29. FORCE MAJEURE Neither Lessor nor Lessee shall be deemed in violation of this Lease if it is prevented from performing any of its obligations hereunder by reasons of Force Majeure. For purposes of this Lease, “Force Majeure” means contingenc ies, causes or events beyond the reasonable control of Lessor or Lessee, including acts of nature or a public enemy, war, riot, civil commotion, insurrection, state, federal or municipal government or de facto governmental action (unless caused by acts or omissions of Lessee), fires, explosions, floods, strikes, boycotts, embargoes, or shortages of materials, acts of terrorism, acts of God, casualty losses, unavoidable accidents, floods, fire, explosion, 34 inclement weather, impossibility of performance, any event or action that is legally recognized as a defense to a contract action in the State of California, or other circumstances that are beyond the reasonable control of Lessor or Lessee; provided, however, that this Section 29 shall not apply to failure of Lessee to pay the rentals, fees and charges specified under this Lease. In the event of Force Majeure where Lessee is prevented from performing any of its obligations due to the above stated circumstances, Lessee shall notify Lessor in writing within te n (10) days following such circumstances. Lessor, through its Director of Aviation, shall notify Lessee within twenty (20) days whether Lessor, in its sole discretion, concurs with the reasons for Lessee's delays. SECTION 30. BROKERAGE Lessor and Lessee each represent and warrant that no broker has been engaged on its behalf in the negotiation of this Lease and that there is no such broker who is or may be entitled to be paid a commission in connection therewith. Lessor and Lessee each shall indemnify and save harmless the other of and from any claim for commission or brokerage made by any such broker when such claim is based in whole or in part upon any act or omission by Lessor or Lessee. SECTION 31. RELATIONSHIP OF PARTIES This Lease does not constitute or make Lessee the agent or representative of Lessor for any purpose whatsoever. SECTION 32. NO PARTNERSHIP, JOINT VENTURE OR JOINT ENTERPRISE It is agreed that no partnership, joint venture or joint enterprise exists between the Parties or between Lessor and any other person, and Lessor shall not be responsible in any way for any debts of or cash flow deficits incurred by Lessee in construction of or operation of the Leased Premises or for the debts or obligations of Lessee or any other person or for any cleanup costs or damages incurred by Lessee. SECTION 33. CONFLICT OF INTEREST No officer or employee shall have any financial interest, direct or indirect, in any contract with the City or be financially interested, directly or indirectl y, in the sale to the City of any land, materials, supplies or services, except on behalf of the City as an officer or employee. No officer or employee shall be in litigation with the City or any of its agents at the time this Lease is executed. Lessee shall complete Exhibit B, “Disclosure of Conflict of Interest,” and update same if/when any responses thereto change, so that City may determine whether a conflict exists. Any violation of this section, with knowledge, express or implied, of the person or corporation contracting with the City shall render the contract involved voidable by the City Manager or the City Council. SECTION 34. GIFT TO PUBLIC SERVANT 35 A. Lessor may terminate this Lease immediately if Lessee has offered, or agreed to confer any benefit upon an employee or official of the City of Fresno that such employee or official is prohibited by law from accepting. B. For purposes of this section, “benefit” means anything reasonably regarded as economic gain or economic advantage, including benefit to any other person in whose welfare the beneficiary is interested, but does not include a contribution or expenditure made and reported in accordance with law. C. Notwithstanding any other legal remedies, the City of Fresno may require Lessee to remove any employee of Lessee from the Leased Premises who has violated the restrictions of this section or any expenditures made as a result of the improper offer, agreement to confer, or conferring of a benefit to an employee or official of the City of Fresno. SECTION 35. CONSTRUCTION AND APPLICATION OF TERMS A. Wherever in this Lease a third person singular, neuter pronoun or adjective is used, referring to Lessee, the same shall be taken and understood to refer to Lessee, regardless of the actual gender or number thereof. B. Whenever in this Lease Lessee is placed under an obligation or covenant to do or refrain from or is prohibited from doing or is entitled or privileged to do, any act or thing, its obligations shall be performed or its rights or privileges shall be exercised only by its officers and employees and other duly authorized representatives, or by permitted assigns or subleases of this Lease of all or any part of the Leased Premises. C. Lessee's representative, herein specified (or such substitute as Lessee may hereafter designate in writing) shall have full authority to act for Lessee in connection with this Lease and any things done or to be done under the Lease. D. In case any one or more of the provisions contained in this Lease shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Lease shall be considered as if such invalid, illegal, or unenforceable provision had never been contained in this Lease. 36 SECTION 36. VENUE AND GOVERNING LAW The obligations of the parties to this Lease shall be performable in Fresno County, California, and if legal action is necessary in connection with or to enforce rights under this Lease, exclusive venue shall lie in Fresno County, California. This Lease shall be governed by, and construed in accordance with, the laws and court decisions of the State of California, without regard to conflict of law or choice of law principles of California or of any other state. SECTION 37. SUCCESSORS AND ASSIGNS Subject to the limitations upon assignment herein contained, this Lease shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. SECTION 38. NOTICES Notices hereunder shall be sufficient if sent and received by certified or registered mail, postage fully prepaid, to: LESSOR: LESSEE: City of Fresno –Airports Department ROAM Attn. Director of Aviation 5484 East Perimeter 4995 East Clinton Way Fresno, CA 93727 Fresno, CA 93727 or to such other respective addresses as the parties may from time to time designate to each other in writing. Notice will be deemed delivered to the party to whom addressed on the third (3rd) business day following the date on which the same is deposited, postage fully prepaid, in the U.S. mail, by certified or registered mail. SECTION 39. LEASEHOLD MORTGAGES PERMITTED A. Lessee shall, subject to the written approval of Lessor, have the right to encumber by mortgage, deed of trust or other instrument in the nature thereof (each such mortgage, deed of trust or other instrument being herein called a “leasehold mortgage”) this Lease, Lessee’s leasehold estate and all of Lessee’s rights, title and interest hereunder, including its right to use and occupy the Leased Premises and all of its right and interest in and to any and all buildings, other improvements and fixtures now or hereafter placed on the Leased Premises and any sublease covering the Leased Premises or any portion thereof; and, in such event, upon Lessee’s written request to Lessor, Lessor will execute and deliver a reasonable estoppel certificate addressed to the leasehold mortgagee confirming, among other things, the terms of this Section 39 and agreeing 37 to recognize the leasehold mortgage or any purchaser of the mortgaged leasehold at foreclosure in the same manner as an assignee of this Lease. Notwithstanding the foregoing, no mortgagee or trustee or anyone that claims by, through or under a leasehold mortgage (herein called a “leasehold mortgagee”) shall, by virtue thereof, acquire any greater right in the Leased Premises and in any building or improvement thereon than Lessee then had under this Lease, and provided further that any leasehold or subleasehold mortgage and the indebtedness secured thereby shall at all time be and remain inferior and subordinate to all of the conditions, covenants and obligations of this Lease and to all of the rights of the Lessor hereunder. In no event shall Lessee have the right to encumber, subordinate or render inferior in any manner Lessor’s fee simple title in and to the Leased Premises. B. Subject to Lessee’s and/or any sublessee’s authorization, any such leasehold mortgagee, at its option, at any time before the rights of Lessee shall have been terminated, ma y pay any of the rents due hereunder or may affect any insurance, or may pay any taxes, or may do any other act or thing or make any other payment required of Lessee by the terms of this Lease, or may do any act or thing which may be necessary and proper to be done in the observance of the covenants and conditions of this Lease, or to prevent the termination of this Lease and may use insurance proceeds to pay any sum required to be paid be Lessee hereunder; and all payments so made and all things so done and performed by any such leasehold or subleasehold mortgagee shall be as effective to prevent a forfeiture of the rights of the Lessee hereunder as the same would have been if done and performed by the Lessee instead of by such leasehold mortgagee. C. Leasehold mortgagee, an assignee of this Lease or otherwise, or any other party who shall acquire any rights and interest of Lessee under the terms of the Lease through a conveyance, assignment (“conveyance” and “assignment” does not mean Lessee’s granting of the leasehold mortgage), foreclosure, deed in lieu of foreclosure or any other appropriate proceedings thereof, shall become liable to Lessor for the payment or performance of any obligation of Lessee under the Lease, including without limitation, any of Lessee’s indemnification obligations to Lessor and any of Lessee’s obligations relating to asbestos containing materials removal or disposal, or any other environmental liabilities. D. During such time as Lessee’s leasehold estate is subject to a leaseh old mortgage, this Lease may not be modified or voluntarily surrendered without the prior written consent of the leasehold mortgagee; provided however, that this Lease may be terminated without the consent of the leasehold mortgagee if a default or other cause for termination under this lease occurs and is not corrected or satisfied in accordance with the terms 38 and conditions of the Lease, provided the leasehold mortgagee has received all notices from Lessor that Lessor is required to give Lessee under the Lease. SECTION 40. SECTION HEADINGS The section headings herein are for convenience of reference and are not intended to define or limit the scope of any provisions of this Lease. SECTION 41. COUNTERPARTS This Lease may be executed in any number of counterparts, each of which shall be an original. If this Lease is executed in counterparts, then it shall become fully executed only as of the execution of the last such counterpart called for by the terms of this Lease to be executed. SECTION 42. ENTIRE LEASE; NO ORAL MODIFICATIONS This Lease (with all referenced exhibits, attachments, and provisions incorporated by reference) embodies the entire agreement of both parties, superseding all oral or written previous and contemporary agreements between the parties relating to matters set forth in this Lease. Except as otherwise provided elsewhere in this Lease, this Lease cannot be modified without written supplemental agreement executed by both parties. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Exhibit “B” 40 Exhibit C DISCLOSURE OF CONFLICT OF INTEREST SKYLIFE LEASE AGREEMENT PROJECT TITLE YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (name) (company) (address)  Additional page(s) attached. (city state zip) EXHIBIT "D"SAMPLE ONLY Exhibit “E” Scope of Work Exhibit “B” City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-577 Agenda Date:11/20/2014 Agenda #:1-J REPORT TO THE CITY COUNCIL November 20, 2014 FROM:KEVIN R. MEIKLE, Director of Aviation Airports Department SUBJECT Actions pertaining to an Airport Hangar Lease at Fresno Chandler Executive Airport (Council District 3) 1.Adopt a finding of Categorical Exemption pursuant to Article 19, Section 15301(a) and (d)/Class 1 (Existing Facilities) of the California Environmental Quality Act (CEQA) Guidelines to authorize Lease Amendment No. 1 between the City of Fresno and Frank X. Ruiz Avionics, Inc., at Fresno Chandler Executive Airport (FCH) 2.Approve Lease Amendment No. 1 between the City of Fresno and Frank X. Ruiz Avionics, Inc. RECOMMENDATION Adopt a finding of Categorical Exemption to authorize Lease Amendment No.1 with Frank X.Ruiz Avionics,Inc.,(Ruiz)and approve Lease Amendment No.1 between the City of Fresno (City)and Ruiz. EXECUTIVE SUMMARY Ruiz Avionics has operated at FCH in the same location since 1988.The company offers the services of a Fixed Base Operator (FBO)for general aviation aircraft that includes aviation fuel sales,aircraft repair and maintenance,and specializes in aircraft avionics and radio repairs.The current lease expired on July 31,2014,had a term of one year plus two one-year extensions,and is currently in a hold-over status.Lease Amendment No.1 will extend the term of the Ruiz Agreement an additional five (5)years with an annual rent of $34,428,subject to annual Consumer Price Index (CPI) adjustments. BACKGROUND The leasehold consists of:(i)a 9,000 square foot commercial hangar;(ii)a 2,700 square foot office; and (iii) 55,193 square feet of ramp area. The lease rate represents fair market value at FCH and is consistent with other lease agreements at City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-577 Agenda Date:11/20/2014 Agenda #:1-J The lease rate represents fair market value at FCH and is consistent with other lease agreements at the airport,as required by Federal Aviation Administration (FAA)regulations.The Ruiz operation at FCH is consistent with the Minimum Standards for Chandler Airport previously adopted by the City Council on July 26,2005.In addition,a Fuel Flowage Fee is paid in accordance with the Master Fee Schedule. Lease Amendment No. 1 has been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS This lease falls within the Class 1 Categorical Exemptions set forth in California Environmental Quality Act (CEQA)Guidelines,Sections 15301(a)and (d)(Existing Facilities),as it involves minor or no alteration of existing leasehold structures with no expansion of use,and will not result in any significant negative effects relating to traffic,noise,air quality or water quality.None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines,Section 15300.2 apply to this project. LOCAL PREFERENCE The City’s Local Preference Ordinance (FMC 4-108)does not apply because this item did not go through the competitive bidding process. FISCAL IMPACT The total estimated revenue from this lease,assuming all five years,is $172,140 plus CPI adjustments and Fuel Flowage Fees.All revenue will be deposited into the Airports Enterprise Fund and will contribute to the operation and maintenance of FCH.Lease Amendment No.1 will enable Ruiz to continue providing an economic benefit to the City and the airport through fuel sales and aircraft services and maintenance,which attracts non-based aircraft and support aircraft based at FCH. There is no impact to the General Fund from this item. Attachments: - Agreement - Site Map City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ EXHIBIT A – Site Plan City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-585 Agenda Date:11/20/2014 Agenda #:1-K REPORT TO THE CITY COUNCIL November 20, 2014 FROM:SCOTT L. MOZIER, PE, Director Public Works Department TRHOUGH:ANDREW J. BENELLI, PE, City Engineer/Assistant Director Public Works Department, Traffic and Engineering Services Division BY:JONATHAN BARTEL, Supervising Engineering Technician Public Works Department, Traffic and Engineering Services Division SUBJECT RESOLUTION - Approving the Final Map of Tract No. 6045 and accepting dedicated public uses offered therein -between N. Friant Road and E. Copper Avenue with the Copper River Ranch Master Planned Community (Council District 6) RECOMMENDATION Staff recommends the City Council adopt a resolution approving the Final Map of Tract No.6045 and accepting the dedicated public uses offered therein and to authorize the Public Works Director or his designee to execute the subdivision agreement on behalf of the City. EXECUTIVE SUMMARY The Subdivider,Copper River 74,Inc.,a California Corporation,(Darius Assemi,President),has filed for approval,the Final Map of Tract No.6045,Phase 1 of Vesting Tentative Map No.6045,for a 84- lot single-family residential subdivision with one outlot for future development,located between North Friant Road and East Copper Avenue,within the Copper River Ranch Planned Community on 21.07 acres. BACKGROUND The Fresno City Planning Commission on April 2,2014 adopted Resolution No.13274 approving Vesting Tentative Map No.6045 (Tentative Map)for a 134-lot single-family residential subdivision with one outlot for private streets,streetscapes and public utility purposes on 21.07 acres at an overall density of 6.35 units per acre.The Fresno City Planning Commission on April 2,2014 City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-585 Agenda Date:11/20/2014 Agenda #:1-K overall density of 6.35 units per acre.The Fresno City Planning Commission on April 2,2014 adopted Resolution No.13275 approving Conditional Use Permit Application No.C-13-136 for a single family residential planned development with modified property development standards, including lot size,lot coverage and setback requirements;49 of the proposed lots will be on gated private streets while the remaining 85 lots are proposed on public streets.The Development and Resource Management Department on August 21,2014 approved a minor revision to Vesting Tentative Map No.6045 for revised conditions from the Solid Waste Division.The Tentative Map was approved consistent with the 2025 General Plan and the Woodward Park Community Plan to comply with the provisions of the Subdivision Map Act.The approval of Vesting Tentative Map No.6045 will expire on April 2,2016.The Final Map is technically correct and conforms to the approved Tentative Map,the Subdivision Map Act and the Fresno Municipal Code.The provisions of Section 66474.1 of the Subdivision Map Act require a final map that is in substantial compliance with the approved tentative map to be approved by the City Council. The Subdivider has satisfied all other conditions of approval by executing the Subdivision Agreement for Tract No.6045,submitted securities in the total amount of $1,328,000.00 to guarantee the completion and acceptance of the public improvements,$664,000.00 for a payment security and $10,000.00 for completion of improvement plans and has paid the miscellaneous and development impact fees due as a condition of approval for the Final Map in the amount of $248,516.08. Covenants have been executed to defer eligible development impact fees totaling $457,605.83 to the time of issuance of building permit and final occupancy of each unit and for special solid waste disposal services.The City Attorney’s Office has approved all documents as to form and the Risk Management Division has approved all security bonds and insurance certificates. MAINTENANCE DISTRICT:A condition of approval of the Tentative Map is to maintain the landscaping and irrigation systems within street and landscaping easements,concrete curbs and gutters,valley gutters,entrance median curbs,median island and entrance street decorative concrete,hardscapes,sidewalks,curb ramps,street lighting,interior street paving,street furniture, pilasters,and street name signage within and adjacent to the Final Map in accordance with the adopted standards of the City.The Subdivider has satisfied the maintenance requirement for this Final Map with the establishment of City’s Community Facility District No.12 (CFD-12)which the City Council approved on July 19, 2006. ENVIRONMENTAL FINDINGS Pursuant to CEQA Guidelines Section 15268(b)(3),approval of final subdivision maps is a ministerial action and is exempt from the requirements of CEQA. LOCAL PREFERENCE Local preference was not considered because this ordinance does not include a bid or award of a construction or services contract. FISCAL IMPACT The Final Map is located in Council District 6.There will be no impact to the City’s General Fund. Approval by the Council will result in timely deliverance of the review and processing of the Final Map as is reasonably expected by the Subdivider.Prudent financial management is demonstrated by the expeditious completion of this Final Map inasmuch as the Subdivider has paid the City a fee for theCity of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-585 Agenda Date:11/20/2014 Agenda #:1-K expeditious completion of this Final Map inasmuch as the Subdivider has paid the City a fee for the processing of this Final Map and that fee is,in turn,funding the respective operations of the Public Works Department. Attachments: -Resolution -Final Map of Tract No. 6045 City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-562 Agenda Date:11/20/2014 Agenda #:1-L REPORT TO THE CITY COUNCIL November 20, 2014 FROM: STEVE BRANDAU, Council President District 2 BY:BRANDON M. COLLET, Deputy City Attorney’s Office SUBJECT ***BILL NO. B-50 -(Intro. 11/6/2014) (For adoption) - Repealing Section 4-111 of the Fresno Municipal Code and adding Section 4-111 to the Fresno Municipal Code relating to Project Labor Agreements RECOMMENDATION We recommend that City Council approve the ordinance repealing and adding Section 4-111 of the Fresno Municipal Code (FMC)relating to Project Labor Agreements,if the City wants to remain eligible to receive state funding or financial assistance for construction projects after December 31, 2014. EXECUTIVE SUMMARY The ordinance repeals FMC section 4-111 prohibiting project labor agreements,and adds FMC section 4-111 allowing City Council by majority vote to use,enter into or require contractors to enter into a project labor agreement for construction projects on a project specific basis.The ordinance is intended to comply with state law so that the City will remain eligible for state funding or financial assistance on construction projects after December 31, 2014. BACKGROUND ENVIRONMENTAL FINDINGS This is not a “project”for the purposes of CEQA pursuant to CEQA Guidelines,section 15378(b)(5), as it is an administrative activity that will not result in direct or indirect physical changes to the environment. City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-562 Agenda Date:11/20/2014 Agenda #:1-L LOCAL PREFERENCE Local preference was not considered because this ordinance does not include a bid or award of a construction or services contract. FISCAL IMPACT There may be a fiscal impact to the City,depending on the number of project labor agreements that may be required by the Council and the cost increases or decreases associated with project labor agreements. Attachment:Ordinance City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ Page 1 of 2 Date Adopted: Date Approved Effective Date: City Attorney Approval: ________ Ordinance No. BILL NO. ORDINANCE NO. AN ORDINANCE OF THE CITY OF FRESNO, CALIFORNIA, REPEALING SECTION 4-111 OF THE FRESNO MUNICIPAL CODE AND ADDING SECTION 4- 111 TO THE FRESNO MUNICIPAL CODE RELATING TO PROJECT LABOR AGREEMENTS. THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS FOLLOWS: SECTION 1. The California Public Contract Code sections 2500 through 2503 prohibit charter cities from maintaining charter or ordinance provisions that limit or prevent the city council from approving project labor agreements for construction projects, or the city may be deprived of state funding or financial assistance for pro jects. SECTION 2. Section 4-111 of the Fresno Municipal Code prohibiting project labor agreements is repealed and replaced with a new Section 4-111 to read: Section 4-111. PROJECT LABOR AGREEMENTS. (a) “Project Labor Agreement” shall have the definition set forth in California Public Contract Code section 2500. (b) The Council may require a Project Labor Agreement for any contract for construction projects for the city, as provided in California Public Contract Code sections 2500 through 2503. SECTION 3. This ordinance shall become effective and in full force and effect at 12:01 a.m. on the thirty-first day after its final passage. SECTION 4. This Ordinance shall no longer be of any force or effect upon the entry of a final judgment invalidating Public Contract Code Sections 2500-2503 (Senate Bills Numbers 829 (2011) and 922 (2012)); in such an event, the Fresno Municipal Code sections amended by this Ordinance shall be reinstated to read as they did prior to the passage of this Ordinance. * * * * * * * * * * * * * * Page 2 of 2 STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoing ordinance was adopted by the Council of the City of Fresno, at a regular meeting held on the _________ day of ______________, 2014. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2014 Mayor Approval/No Return: , 2014 Mayor Veto: , 2014 Council Override Vote: , 2014 YVONNE SPENCE, CMC City Clerk BY: Deputy APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE BY: Brandon M. Collet Date Deputy BMC:prn [65436prn/ord] 10-29-14 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-568 Agenda Date:11/20/2014 Agenda #:1-M REPORT TO THE CITY COUNCIL DATE:November 20, 2014 FROM:STEVE BRANDAU, Council President District 2 SUBJECT ***BILL NO. B-49 - (Intro. 11/6/2014) (For adoption) -Amending Section 4-401 of the Fresno Municipal Code and repealing Sections 4-402, 4-403 and 4-404 of the Fresno Municipal Code relating to prevailing wages for public works RECOMMENDATION Staff recommends that City Council approve the amending Section 4-401 of the Fresno Municipal Code (“FMC”)and repealing Sections 4-402,4-403 and 4-404 of the FMC relating to prevailing wages for public works.The recommended action will allow the City to remain eligible to receive state grant and loan funding and other financial assistance for public utilities and public works capital projects after December 31, 2014. EXECUTIVE SUMMARY The proposed ordinance repeals Sections 4-402,4-403 and 4-404 relating to the determination of prevailing wages,reference to prevailing wages in notice of contract and exemption from payment of prevailing wages,and amends FMC section 4-401 to state the City shall pay prevailing wage consistent with Labor Code Sections 1770 et seq..The proposed ordinance is intended to comply with state law so that the City will remain eligible for state grant and loan funding and other financial assistance for public utilities,public works,or public transportation related capital projects after December 31, 2014. BACKGROUND General-law cities are required to follow state law and pay prevailing wages for public works projects; however charter cities have “home rule”governing powers that enable them to decide whether prevailing wage is required if the project is financed solely out of local revenues.Fresno is one of ten charter cities with a “partial exemption”to state prevailing wage requirements,and there are 41 City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-568 Agenda Date:11/20/2014 Agenda #:1-M charter cities with full exemption. Senate Bill 7 (“SB 7”)adds Labor Code section 1782,which prevents a city from receiving state funding or financial assistance if it has awarded a public works contract that does not comply with state prevailing wage requirements in the current year or previous two years.Even in the absence of awarding such a contract,the new law precludes a city from receiving such funding if the city has a charter provision or ordinance that would authorize a contractor to not comply with the prevailing wage requirements on any public works contract.At present,Fresno’s prevailing wage exceptions are set forth in Article 4 of the FMC,and unless modified by Council,would preclude the City from receiving state construction funds.On February 20,2014,a lawsuit was filed challenging the constitutionality of the SB 7,and the trial court found SB 7 to be constitutional.The trial court decision will be appealed. The proposed ordinance includes language that if SB 7 is invalidated,the FMC sections amended by the ordinance will be reinstated to read as they did prior to the passage of this ordinance. ENVIRONMENTAL FINDINGS This is not a “project”for the purposes of CEQA pursuant to CEQA Guidelines,section 15378(b)(5), as it is an administrative activity that will not result in direct or indirect physical changes to the environment. LOCAL PREFERENCE Local preference was not considered because this ordinance does not include a bid or award of a construction or services contract. FISCAL IMPACT There will be a significant fiscal impact to the City if the State deems that the City is ineligible to receive state grants,loans,and other financial assistance for public utilities,public works,or public transportation capital projects. Attachment: Ordinance City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ Page 1 of 2 Date Adopted: Date Approved Effective Date: City Attorney Approval: ________ Ordinance No. BILL NO. ORDINANCE NO. AN ORDINANCE OF THE CITY OF FRESNO, CALIFORNIA, AMENDING SECTION 4-401 OF THE FRESNO MUNICIPAL CODE, AND REPEALING SECTIONS 4-402, 4-403 AND 4-404 OF THE FRESNO MUNICIPAL CODE, RELATING TO PREVAILING WAGES FOR PUBLIC WORKS. THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS FOLLOWS: SECTION 1. Section 4-401 of the Fresno Municipal Code is amended to read: SECTION 4-401. APPLICABILITY OF STATE LAW . [Pursuant to Labor Code section 1782 (Senate Bill 7 (2013)),] the construction by the city of its public works, being a municipal affair, [shall be governed by] the provisions of Labor Code Sections 1770 to 1781, as amended, shall apply to the city only to the extent that they are not in conflict with the provisions of this article. [,et. seq.] SECTION 2. Section 4-402 of the Fresno Municipal Code is repealed. SECTION 3. Section 4-403 of the Fresno Municipal Code is repealed. SECTION 4. Section 4-404 of the Fresno Municipal Code is repealed. SECTION 5. This ordinance shall become effective and in full force and effect at 12:01 a.m. on December 31, 2014. SECTION 6. This Ordinance shall no longer be of any force or effect upon the entry of a final judgment invalidating Labor Code section 1782 (Senate Bill 7 (2013)); in such an event, the Fresno Municipal Code sections amended by this Ordinance shall be reinstated to read as they did prior to the passage of this Ordinance. Page 2 of 2 * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoing ordinance was adopted by the Council of the City of Fresno, at a regular meeting held on the _________ day of ______________, 2014. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2014 Mayor Approval/No Return: , 2014 Mayor Veto: , 2014 Council Override Vote: , 2014 YVONNE SPENCE, CMC City Clerk BY: Deputy APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE BY: Brandon M. Collet [Date] Deputy City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-499 Agenda Date:11/20/2014 Agenda #:2-A REPORT TO THE CITY COUNCIL November 20, 2014 FROM:MICHAEL A. LIMA, Controller/Finance Director/(ex-officio)Treasurer Finance Department BY:KAREN M. BRADLEY, Assistant Controller Finance Department GREGORY S. WILES, Treasury Officer Finance Department SUBJECT Claim $18,497.13 in funds for uncashed checks dated January 5, 2010 through December 27, 2010 and one bond deposit dating from 2003, and transfer said funds from the “Special Fund” 63539 to the General Fund 10101 1.RESOLUTION - Claiming funds for stale-dated (uncashed) checks dated January 5, 2010 through December 27, 2010 and one bond deposit from 2003 and transferring said funds from the special unclaimed funds - Fund 63539 to the General Fund 10101 RECOMMENDATION Approve the Resolution herein attached as Attachment 1 to claim and transfer the funds appropriated for the City-issued checks and one bond deposit listed in Exhibit A to Attachment 1 from Fund 63539 to the General Fund 10101. EXECUTIVE SUMMARY State law and City Policy allow the City to recover unclaimed monies in the City Treasury and transfer them into the General Fund for use as Council sees fit.Uncashed checks issued by the City that are older than three years qualify as unclaimed funds.Bond deposits that have never been claimed by prospective contractors also qualify.The City followed the notification procedures outlined in State law,and received no response from the individuals and companies to whom the checks were issued. Upon approval of the attached Resolution,Council may claim and transfer $18,497.13 into the General Fund. City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-499 Agenda Date:11/20/2014 Agenda #:2-A BACKGROUND Under the City of Fresno Policy and Procedures for Claiming Unclaimed Money in the City of Fresno Treasury for the General Fund (the “Policy”),originally adopted on August 27,2002,and revised/adopted on January 17,2013,the City may claim unclaimed funds held in the City’s Treasury for more than three years and transfer these funds to the City’s General Fund.This unclaimed property includes uncashed checks and deposits for various purposes.This practice is permitted under Government Code Sections 50050-50053 and 50055. Uncashed checks are checks that have been issued by the City,but for reasons unknown,have never been negotiated,deposited,or cashed by the recipient.These checks have been issued for payroll,Worker’s Compensation claims,or in payment for goods or services received.The payee has never notified the City that payment was not received or that the check was lost.Deposits that may be claimed might include bid deposits on various contracts that have never been reclaimed by the bidders for one reason or another. The Treasury Section generally prepares this Resolution annually to claim property that has been held for more than three years.This year’s Resolution includes checks that were written prior to December 31, 2010 and a deposit that has been held since 2003. State law requires that a list of unclaimed funds (checks or deposits)for amounts of $15 or more be published in a newspaper of general circulation in the City of Fresno for two successive weeks.There is a forty-five (45)day period from the date of the first publication of the list,during which individuals have the right to contact the City and claim the funds on deposit.Any funds that are not claimed become the property of the City of Fresno on the 45th day.The Council may then transfer that money from the fund in which it currently resides, a “Special Fund,” to the City’s General Fund. Consistent with the Policy and State Law,the Assistant Controller has published a list of uncashed checks and a deposit older than three years in a newspaper of general circulation in the City of Fresno,once per week,for two successive weeks (See Attachment 2,hereto).The published notice listed the payees for the checks as well as the amount of each check,and the depositor of the single deposit.Prospective claimants were invited to contact the City to obtain instruction as to how to file a claim for the funds.Also,notification that funds could be claimed before the 45th day from the date of first publication was included in the notice. In addition to meeting the minimum legal requirement for claiming these funds,publishing the amounts in the Business Journal,staff performed additional due diligence by sending letters to each one of the payees and the single depositor at their last known address.Also,the City’s worker’s compensation claims administrator,American All Risk Loss Administrator (“AARLA”),also sent letters to its payees as well.The letter notified the payee of the existence of the funds,and invited them to submit a claim, including a request for the City to process a reimbursement. Attachment 2 is a photocopy of the notification published in the Business Journal on April 28,2014 and May 5,2014.The list included uncashed accounts payable vendor checks of $8,872.15, uncashed payroll checks of $5,537.67,uncashed workers compensation checks of $204.19,and one bond deposit of $3,800.00.Checks for less than fifteen dollars ($15)each totaled $83.12.There was no requirement to publish these checks,and so the total amount of checks published was $18,414.01. City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-499 Agenda Date:11/20/2014 Agenda #:2-A No claims were submitted.The total amount to be transferred to the General Fund,therefore,is $18,497.13. The attached list of checks and one deposit,(Exhibit A to Attachment 1),shows the funds that were unclaimed.Upon passing the attached Resolution,these funds will be transferred to the General Fund.The Controller certifies that all of the requirements of the Policy and State law have been met and the City may therefore transfer the funds appropriated for these checks as well as the bond deposit to the General Fund. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a “project”and is therefore exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE Local preference was not considered because this Resolution does not include a bid or award of a construction or service contract. FISCAL IMPACT The Cash Balance of the General Fund will be increased by $18,497.13.These funds may be appropriated as the Mayor and Council choose. Attachments: Attachment 1:Resolution transferring $18,497.13 to the General Fund Exhibit A: List of funds to be transferred to the General Fund Attachment 2:Photocopy of Business Journal Notice City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-500 Agenda Date:11/20/2014 Agenda #:2-B REPORT TO THE CITY COUNCIL November 20, 2014 FROM:MICHAEL A. LIMA, Controller/Finance Director/(ex-officio)Treasurer Finance Department BY:KAREN M. BRADLEY, Assistant Controller Finance Department GREGORY S. WILES, Treasury Officer Finance Department SUBJECT Appoint and authorize certain Finance Officers of the City of Fresno (“City”) to sign City checks and various investment and commercial banking documents, and to provide verbal instruction required for the prudent financial administration and safekeeping of City funds 1.RESOLUTION - Authorizing certain Finance Officers of the City of Fresno to sign City checks and various investment and commercial banking documents and to provide verbal instruction required for the prudent financial administration and safekeeping of City funds RECOMMENDATION Appoint and authorize certain City employees to act as Finance Officers to sign City checks and various investment and commercial banking documents,and to provide verbal instruction required for the prudent financial administration and safekeeping of City funds. EXECUTIVE SUMMARY The City Council periodically adopts Resolutions which appoint Finance Officers for the City of Fresno to sign City checks and various investment and commercial banking documents,and to provide verbal instruction as required for the prudent financial administration and safekeeping of City funds.Since the approval of the last Resolution,there has been a change to the list of Finance Officers as shown on the attached Resolution. BACKGROUND Fresno Charter Section 804 establishes the position of Controller and specifies that this person is to City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-500 Agenda Date:11/20/2014 Agenda #:2-B Fresno Charter Section 804 establishes the position of Controller and specifies that this person is to have charge of the Finance Department and administer the financial affairs of the City under the direction of the Chief Administrative Officer.Fresno Municipal Code Section 7-901 names the City Controller as the ex-officio Treasurer of the City,and states that the Treasurer shall receive all moneys collected by the City and shall “retain the same in his custody to the order of said city.” Examples of the financial affairs assigned to the Controller include:signing payroll and accounts payable checks,purchasing investments,and performing various other banking transactions.In order for the Controller to effectively and efficiently meet these responsibilities,the authority for performing many finance functions must be delegated to responsible Finance Department employees.A reasonable system of internal controls requires that only certain employees be authorized to approve these day-to-day transactions. These employees,along with the Controller,are designated as the City of Fresno’s Finance Officers. The attached Resolution contains a list of Finance Officers,along with their exemplar signatures,and provides the authorization for them to perform Finance Department transactions.The list includes the Controller/Finance Director/(ex-officio)Treasurer,the Assistant Controller and the Management Analyst III of the Finance Department’s Administration Unit,and the Treasury Officer,the Senior Accountant-Auditor and the Accountant-Auditor II of the Finance Department’s Treasury Section.The attached Resolution has been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a “project”and is therefore exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE Local preference was not considered because this Resolution does not include a bid or award of a construction or service contract. FISCAL IMPACT The compensation of the Controller/Finance Director/(ex-officio)Treasurer and the additional Finance Officers to be appointed by this Resolution,has already been established by the City’s Position Authorization Resolution and Budget for Fiscal Year 2014-2015.There is no additional cost to the General Fund or any other City fund associated with the recommended action,and there is no financial impact on any particular Council District as a result of the recommended action. Attachment:Resolution City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-506 Agenda Date:11/20/2014 Agenda #:2-C REPORT TO THE CITY COUNCIL November 20, 2014 FROM:MICHAEL A. LIMA, Controller/Finance Director/(ex-officio)Treasurer Finance Department BY:KAREN M. BRADLEY, Assistant Controller Finance Department GREGORY S. WILES, Treasury Officer Finance Department SUBJECT Approve the City of Fresno (the “City”) Investment Policy for Fiscal Year 2014-2015 1.***RESOLUTION - Adopting an investment policy for public funds for fiscal year 2014-2015 RECOMMENDATION Staff recommends that Council approve the accompanying Resolution to adopt the City Investment Policy (the “Policy”) for Fiscal Year 2014-2015 EXECUTIVE SUMMARY There are no changes in the Investment Policy from last Fiscal Year.The Fresno Municipal Code (“FMC”)requires that Council annually approve and adopt an Investment Policy,and delegate its authority to invest City funds to the City Treasurer.State Law refers to “surplus funds”that are not needed for current operations.Good cash management includes investing these funds,in accordance with an approved Investment Policy.Interest earnings on investments are allocated to all Funds based on the amount of cash the Fund has invested in the City-wide Pool. BACKGROUND Although State Law no longer requires it,good cash management necessitates a detailed plan for handling cash resources.The Fresno Municipal Code (the “FMC”)therefore requires that Council annually adopt an investment policy for public funds.An investment policy establishes the objectives, guidelines,and types of investments for a government’s public funds investment program.State Law does contain numerous other stipulations regarding the City’s investment program.There have been no changes,either in the FMC or in State Law regarding municipal investments during the last Fiscal City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-506 Agenda Date:11/20/2014 Agenda #:2-C no changes,either in the FMC or in State Law regarding municipal investments during the last Fiscal Year. Consequently, there are no changes in the Investment Policy from last Fiscal Year. The California State Government Code 53601 sets forth the parameters that govern a local agency’s investment program.This Law states that “The legislative body of a local agency having money in a sinking fund of,or surplus money in,its treasury not required for the immediate needs of the local agency may invest any portion of the money that it deems wise or expedient …”The Treasury Section of the Finance Department is responsible for balancing the operating cash needs of the City with the amount of money available for investment (“surplus funds).These monies are aggregated together in a City-wide Pool for investment purposes.Each Fund owns “shares”in the Pool,based on the Fund’s cash balance. Staff selects investments in accordance with procedures that are spelled out in the Policy and result in the most advantageous investment position for the City at the time.When interest payments are made on the City’s investments,they are allocated through PeopleSoft to each Fund,based on that Fund’s investment in the City-wide Pool. Although not required by State Law,monthly reports on the status of the Investment Portfolio are published on the City’s website,under the section for the Finance Department.In addition to the Investment Portfolio,however,this report details the status of all of the City’s cash resources.This includes both surplus funds,and the monies earmarked for operations.Operating cash is reflected in the City’s bank account,in anticipation of the need to meet cash demands for disbursements to employees and vendors. Because there have been no changes in State Law or the FMC,staff recommends that Council approve the City’s Investment Policy for Fiscal Year 2014-2015,which is identical to last Fiscal Year’s edition. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a “project”and is therefore exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE Local preference was not considered because this Resolution does not include a bid or award of a construction or service contract. FISCAL IMPACT Approving this Resolution adopting an Investment Policy for Fiscal Year 2014-2015 will provide staff with direction on how to manage the City’s cash resources,specifically,how they shall be used to fund operations or invested to obtain interest earnings if not currently needed.Interest earnings are allocated to funds based on their cash balances. City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-506 Agenda Date:11/20/2014 Agenda #:2-C Attachments:Attachment 1: Resolution adopting Investment Policy for Fiscal Year 2014-2015 Exhibit A: Investment Policy for Fiscal Year 2014-2015 City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-572 Agenda Date:11/20/2014 Agenda #:2-D REPORT TO THE CITY COUNCIL November 20, 2014 FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:ROBERT N. ANDERSEN, PE, Assistant Director Public Works Department, Capital Management Division STEVEN C. SON, PE, Capital Projects Manager Public Works Department, Capital Management Division JESUS A. GONZALEZ, PE, Project Manager Public Works Department, Capital Management Division SUBJECT Actions pertaining to Copper Avenue Trail from Friant Road to Cedar Avenue, Bid File No. 3248 (Council District 6) 1.Adopt an addendum to the 2002 Copper River Ranch Program EIR No. 10126 (SCH2000021) pursuant to Sections 15162 and 15164 of the CEQA Guidelines, for the Copper Avenue Trail project from Friant Road to Cedar Avenue 2. Award a construction contract to Yarbs Grading and Paving, Inc. of Fowler, California in the amount of $589,622 for the construction of Copper Avenue Trail from Friant Road to Cedar Avenue RECOMMENDATION Staff recommends that the City Council adopt an addendum to the 2002 Copper River Ranch Program EIR No.10126 (SCH2000021003)and award a construction contract to Yarbs Grading and Paving,Inc.of Fowler,California for the construction of Copper Avenue Trail and authorize the Public Works Director or his designee to sign and execute the standardized contract on behalf of the City. EXECUTIVE SUMMARY The City of Fresno will construct a multipurpose trail as well as landscape and irrigation along Copper Avenue from Friant Road to Cedar Avenue.Additionally,the project will widen westbound Copper Avenue between Millbrook and Cedar Avenues to include asphalt concrete, curb and gutter. City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-572 Agenda Date:11/20/2014 Agenda #:2-D BACKGROUND Based on rapid population growth,Copper Avenue trail was identified as a project to facilitate community connectivity in the area and Measure ‘C’Trails funds were identified for the project’s construction.In January 2012,Council awarded a contract to Provost and Pritchard Engineering Group Inc.to prepare plans and specifications for the construction of Copper Avenue trail from Friant Road to Chestnut Avenue.Due to construction funding limitations and right-of-way acquisition needs,the project was separated into three phases.The current project’s trail segment spanning from Friant Road to Cedar Avenue is the first of the three proposed phases to be constructed.Future phase two segment spans from Cedar Avenue to Maple Avenue and future phase three segment spans from Maple Avenue to Chestnut Avenue. Construction documents and specifications were prepared and a Notice Inviting Bids was published in the Business Journal on September 29,2014,and posted on the City’s website.Advertising efforts resulted in the participation of eighteen (18)prospective bidders.Ultimately,twelve sealed bid proposals were received and opened in a public bid opening on October 21,2014,with the bids ranging from $589,622 to $783,664.Yarbs Grading and Paving,Inc.of Fowler California,submitted the lowest bid in the amount of $589,622 and is considered the lowest responsive and responsible bidder. Staff recommends award of a construction contract to Yarbs Grading and Paving,Inc.in the amount of $589,622 to construct the multipurpose trail along Copper Avenue from Friant Road to Cedar Avenue and to authorize the Public Works Director,or his designee,to sign and execute the standardized contract on behalf of the City. The City Attorney’s Office has reviewed and approved as to form the proposed Addendum to the 2002 Copper River Ranch Program EIR. ENVIRONMENTAL FINDINGS Staff has completed an addendum to the 2002 Copper River Ranch EIR No.10126 (SCH2000021003)which was previously approved by Council on June 3,2003.The 2002 Copper River Ranch Program EIR was a program level document and therefore detail of the trail design was not previously included.Since the proposed project simply involves minor modifications to a project that was previously analyzed in the previous EIR,it has been determined that:(1)The project falls within the scope of Copper River Ranch Program EIR;(2)no substantial changes are proposed in the project which require major revisions to the previous environmental finding due to involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;(3)no substantial changes will occur with respect to circumstances under which the project is undertaken;and,(4)no new information,which was not known and could not have been known,at the time the environmental finding for Copper River Ranch Program EIR was adopted, has become available. Therefore,the City of Fresno has determined that an addendum to Copper River Ranch Program EIR is appropriate given that none of the conditions described in Section 15162 of the CEQA Guidelines calling for preparation of an environmental document have occurred;and new information added is only for purposes of providing details, in accordance with Section 15164 of the CEQA Guidelines. City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-572 Agenda Date:11/20/2014 Agenda #:2-D LOCAL PREFERENCE Local preference was not implemented because the low bidder is a local business. FISCAL IMPACT This project will not have an impact on the General Fund.The project is being funded by Measure ‘C’ Trails funding.The total cost for the project is $1,138,622 of which $589,622 will be used for the construction contract. Attachments:Vicinity Map Evaluation of Bid Proposals Fiscal Impact Statement Addendum to EIR No. 10126 prepared for Copper River Ranch City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-599 Agenda Date:11/20/2014 Agenda #:2-E REPORT TO THE CITY COUNCIL November 20, 2014 FROM:THOMAS C. ESQUEDA, Director Department of Public Utilities SUBJECT ***RESOLUTION --Amend the City’s Water Shortage Contingency Plan to allow outdoor watering one-day per week during the winter season (December 1 to March 1) RECOMMENDATION It is recommended that the City Council approve an amendment to the City’s Water Shortage Contingency Plan to allow outdoor watering one day per week during the winter season (December 1 to March 1). EXECUTIVE SUMMARY The City currently uses a four-stage Water Shortage Contingency Plan that escalates water conservation measures based on supply,demand and emergency conditions.The City of Fresno enacted Stage 2 water conservation measures effective August 1,2014.The Stage 2 water conservation measures limit summer outdoor irrigation to twice a week and prohibit all outdoor irrigation during winter months (December 1 to March 1). After reviewing the water consumption data for the City’s public water system,data indicates that the majority of the City’s total water consumption is by the single-family residential customer class,and 96 percent of outdoor watering for single-family residential customers occurs between March 2 and November 30 of each year.Therefore,the Department of Public Utilities recommends that the City Council amend the City’s Water Shortage Contingency Plan to allow one-day per week of outdoor watering during the winter season (December 1 to March 1). BACKGROUND The City of Fresno has been actively engaged in promoting water conservation practices since 1981. The City currently uses a four-stage Water Shortage Contingency Plan that escalates water conservation measures based on supply,demand and emergency conditions.The original Drought Contingency Plan was adopted in 1989;the Water Shortage Contingency Plan was adopted in 1994; and the 2010 Urban Water Management Pan updated the 1994 Water Shortage Contingency Plan to its current status.The City of Fresno has been operating under year-round Stage 1 water City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-599 Agenda Date:11/20/2014 Agenda #:2-E its current status.The City of Fresno has been operating under year-round Stage 1 water conservation measures since 1993,and from 2008 to 2013,community water conservation efforts have resulted in a drop in average daily water usage from about 329 gallons to less than 240 gallons per person per day. On July 15,2014,the State Water Resources Control Board adopted an Emergency Regulation for Statewide Urban Water Conservation with the goal of achieving a 20-percent water reduction throughout the State.In response to the Emergency Regulation,as well as the continued drought conditions in the region and uncertainty regarding the Water Division’s capital plan,the City of Fresno enacted Stage 2 water conservation measures effective August 1,2014.The Stage 2 water conservation measures limit summer outdoor irrigation to a twice a week and prohibit all outdoor irrigation during winter months (December 1 to March 1). After reviewing water usage data for the City’s public water system,it has been determined that the single family residential (SFR)customer class uses 56 percent of all water produced by the City. Further data analysis indicates that winter (December 1 to March 1)water consumption and summer (March 2 to November 30)water consumption average approximately 10,000 gallons per month and 23,000 gallons per month,respectively,for the SFR customer class -with 54 percent of all water used by the SFR customer class estimated to be used for outdoor irrigation.Of the total outdoor irrigation water used by the SFR customer class,the water consumption data indicates that 96 percent of the outdoor irrigation water is used between March 2 and November 30,and 4 percent of the outdoor irrigation water is used between December 1 and March 1. Recognizing the differences in summer and winter water use patterns for the SFR customer class, and that 96 percent of outdoor irrigation by the SFR customer class is used between March 2 and November 30,the Department of Public Utilities recommends revising the City’s Water Shortage Contingency Plan to allow one-day per week of outdoor watering during the winter season (December 1 to March 1).Although outdoor irrigation by the SFR customer class places a significant burden on the City’s public water system,the level of usage by SFR customers during the winter months will not adversely impact the City overall water supply.The recommended changes apply exclusively to winter watering days.All of the existing water conservation contained in the City’s Stage 2 conversation measures will still appropriately target summer outdoor irrigation by continuing to limit summer outdoor irrigation to two days per week. ENVIRONMENTAL FINDINGS CEQA section 15282(v)exempts the preparation and adoption of Urban Water Management Plans (UWMP),and the recommended amendment of the Water Shortage Contingency Plan falls within the scope of the City’s UWMP as Chapter 9. LOCAL PREFERENCE Local preference was not considered because the Resolution does not include a bid or award of a construction or services contract. FISCAL IMPACT As this is an enterprise operation, there is no impact to the General Fund. City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-599 Agenda Date:11/20/2014 Agenda #:2-E Attachment: Resolution City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-607 Agenda Date:11/20/2014 Agenda #: REPORT TO THE CITY COUNCIL DATE:November 20, 2014 FROM:OLIVER BAINES III, Councilmember District 3 SUBJECT Discussion and appointment of a City Council Sub-Committee on Transportation City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-566 Agenda Date:11/20/2014 Agenda #: CLOSED SESSION ITEM November 20, 2014 SUBJECT CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION - Government Code Section 54956.9, subdivision (d)(1) Case Name: Carlton Jones v. City of Fresno; Fresno County Superior Court Case No. 12CECG03049 City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-595 Agenda Date:11/20/2014 Agenda #: CLOSED SESSION ITEM November 20, 2014 SUBJECT CONFERENCE WITH REAL PROPERTY NEGOTIATOR - Government Code Section 54956.8 Property: APNs 472-021-58T, 472-021-60T, 472-021-61T (5100 block of East Kings Canyon Road) Negotiating Parties:City Manager Bruce Rudd;Cesar Chavez Foundation,a California nonprofit public benefit corporation City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-596 Agenda Date:11/20/2014 Agenda #: JOINT CLOSED SESSION ITEM November 20, 2014 SUBJECT CONFERENCE WITH REAL PROPERTY NEGOTIATOR - Government Code Section 54956.8 Property:APN 466-214-17T (Kidney Lot);Remnant Parcel located between H Street,Broadway,and Fresno Streets, and Merced Mall Negotiating Parties:City Manager Bruce Rudd;Executive Director Marlene Murphey;APEC International, LLC City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-597 Agenda Date:11/20/2014 Agenda #: JOINT CLOSED SESSION ITEM OF THE CITY OF FRESNO AND THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO AND FRESNO REVITALIZATION CORPORATION November 20, 2014 SUBJECT CONFERENCE WITH LEGAL COUNSEL -EXISTING LITIGATION -Government Code Section 54956.9, Subdivision (d)(1) City of Fresno v.Raps Fresno,LLC.,et al.(Hotel Fresno);Superior Court Case No. 05CECG01744MS City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-501 Agenda Date:11/20/2014 Agenda #: REPORT TO THE CITY COUNCIL November 20, 2014 FROM:MICHAEL A. LIMA, Controller/Finance Director/(ex-officio)Treasurer Finance Department BY:KAREN M. BRADLEY, Assistant Controller Finance Department GREGORY S. WILES, Treasury Officer Finance Department SUBJECT Consent to and authorization of the investment of monies in the Local Agency Investment Fund (“LAIF”) in the custody of the State Treasurer for purposes of investment and authorize certain Finance Officers in connection therewith (Council action) 1.RESOLUTION - Consenting to and authorizing investment of monies in the Local Agency Investment Fund (“LAIF”) in the custody of the State Treasurer for purposes of investment, and authorizing certain Finance Officers in connection therewith (Council action) RECOMMENDATION Staff recommends that the City Council approve the attached Resolution,authorizing the investment of monies in the Local Agency Investment Fund (“LAIF”),and authorizing certain Finance Officers to conduct investment transactions with LAIF. EXECUTIVE SUMMARY Pursuant to Chapter 730 of the Statutes of 1976,Section 16429.1,the California Legislature created LAIF in the State Treasury for the investment of money belonging to a local agency.Approving this Resolution will result in the appointment of certain City employees to conduct investment transactions with LAIF. BACKGROUND City Charter Section 804 establishes the position of Controller and specifies that this person is to have charge of the Finance Department and administer the financial affairs of the City under the direction of the Chief Administrative Officer.Fresno Municipal Code Section 7-901 names the City City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-501 Agenda Date:11/20/2014 Agenda #: direction of the Chief Administrative Officer.Fresno Municipal Code Section 7-901 names the City Controller as the ex-officio Treasurer of the City,and states that the Treasurer shall receive all moneys collected by the City and shall “retain the same in his custody to the order of said city.” Pursuant to Chapter 730 of the Statutes of 1976,Section 16429.1,the California Legislature created LAIF in the State Treasury for the investment of money belonging to a local agency.The attached Resolution authorizes the Controller/Finance Director/(ex-officio)Treasurer,as well as certain other employees of the Finance Department, to conduct transactions with LAIF. LAIF requires a separate Resolution authorizing such officials to transact business with LAIF.The attached Resolution provides the necessary authorization for City Finance Officers to transact business with LAIF.It contains a list of the City’s designated Finance Officers,along with their exemplar signatures.The list includes the following Finance Department employees:The Controller/Finance Director/(ex-officio)Treasurer,the Assistant Controller,a Management Analyst III, and the Treasury Officer.The attached Resolution has been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a “project”and is therefore exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE Local preference was not considered because this Resolution does not include a bid or award of a construction or service contract. FISCAL IMPACT The compensation of the Controller/Finance Director/(ex-officio)Treasurer and the additional Finance Officers to be appointed by this Resolution,has already been established by the City’s Position Authorization Resolution and Budget for Fiscal Year 2014-2015.There is no additional cost to the General Fund or any other City Fund associated with the recommended action,and there is no financial impact on any particular Council District as a result of the recommended action. Attachment:Resolution City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-504 Agenda Date:11/20/2014 Agenda #: REPORT TO THE CITY COUNCIL November 20, 2014 FROM:MICHAEL A. LIMA, Controller/Finance Director/(ex-officio)Treasurer Finance Department BY:KAREN M. BRADLEY, Assistant Controller Finance Department GREGORY S. WILES, Treasury Officer Finance Department SUBJECT Authorize advances of money to the Joint Powers Financing Authority (the “JPFA”) for investment with the Local Agency Investment Fund (the “LAIF”) and accept a Demand Promissory Note from the JPFA evidencing those advances (Council action) 1.RESOLUTION - Authorizing advances to the Joint Powers Financing Authority for investment with the Local Agency Investment Fund, and approving a promissory note from the Fresno Joint Powers Financing authority (Council action) RECOMMENDATION Staff recommends that Council adopt the attached Resolution authorizing advances of up to fifty million dollars ($50,000,000)to the JPFA for investment in the LAIF,and approve and accept a Demand Promissory Note from the JPFA. EXECUTIVE SUMMARY The State Treasurer’s Office provides a safe and liquid investment alternative in LAIF.This is one of the approved investments contained within the City’s Investment Policy.LAIF allows a California agency to invest a maximum of $50,000,000 in its account with LAIF.Both the City and the JPFA qualify as independent agencies,each authorized to have a separate account at LAIF.By lending $50,000,000 to the JPFA,and requiring the JPFA to pay its LAIF interest earnings to the City as interest on the loan,the City effectively doubles the amount it can invest in LAIF.Additionally,by utilizing an open-ended demand promissory note with no maturity date,the City places itself in a position to call the note and demand the return of its funds any time it wishes. BACKGROUND City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-504 Agenda Date:11/20/2014 Agenda #: LAIF offers an investment option available to local public agencies that provides access to professional money management by the State Treasurer’s Office,as well as immediate liquidity. Local agencies benefit by obtaining a reasonable rate of return,with a high degree of safety. Additionally,the funds are available for use daily,if requested before 10:00 a.m.LAIF is one of the approved investment alternatives contained within the City’s Investment Policy. LAIF is currently paying a reasonable rate of interest for funds with immediate liquidity and a high degree of safety.In order to obtain an equivalent rate of interest with an equivalent amount of safety, an investor would have to tie up funds in a U.S.Treasury Note maturing in February of 2016.Funds would therefore not be liquid for nearly one and one-half years.Liquidity would be sacrificed for safety and rate of return.Thus,because LAIF offers safety,a reasonable rate of return,and the funds are highly liquid,it is a very attractive investment alternative for the City’s surplus funds.For many years now, the City has met its need for liquid operating funds by investing in LAIF. Currently LAIF has a maximum investment limit of fifty million dollars ($50,000,000)for each local public agency.This means that the City of Fresno and the JPFA each have the capacity to invest $50,000,000 in an LAIF account.However,the City has operating cash in excess of $50,000,000, while the JPFA has no funds of its own.This Promissory Note between the City and the JPFA will allow the City’s excess surplus funds to be loaned to the JPFA for investment in LAIF,thus taking advantage of the JPFA’s account limit with LAIF. The Promissory Note to be used for this transaction is a Demand Promissory Note.This type of note evidences a perpetual loan with no fixed term or set duration of repayment.It is an open-ended loan that can be recalled upon the lender’s demand.The funds are lent to the JPFA with very specific terms as to the disposition of the money.It is to be invested in the JPFA’s account with the LAIF. However,should the City ever wish to do so,it can demand repayment from the JPFA at any time. Accepting this Promissory Note from the JPFA will effectively allow the City to double the amount of funds that can be invested with LAIF, while allowing for on-demand liquidity as needed. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a “project”and is therefore exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE Local preference was not considered because this Resolution does not include a bid or award of a construction or service contract. FISCAL IMPACT Approving the acceptance of the Promissory Note and authorizing the loan of funds to the JPFA to be invested in LAIF will allow the investment of surplus funds in a pool managed by the California State Treasurer’s Office,thereby securing a reasonable rate of return with little risk and a high degree of liquidity.There is no cost to the General Fund or any other City fund associated with the recommended action,and there is no financial impact on any particular Council District as a result of City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-504 Agenda Date:11/20/2014 Agenda #: the recommended action. Attachment: Resolution City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-544 Agenda Date:11/20/2014 Agenda #: REPORT TO THE CITY COUNCIL November 20, 2014 FROM:SCOTT L. MOZIER, PE, Director Public Works Department THROUGH:ANDREW J. BENELLI, PE, City Engineer/Assistant Director Public Works Department, Traffic and Engineering Services Division BY:ANN LILLIE, Senior Engineering Technician Public Works Department, Traffic and Engineering Services Division SUBJECT HEARING to adopt resolutions and ordinance to annex territory and levy a special tax regarding City of Fresno Community District No. 11, Annexation No. 57 (Final Tract Map No. 5967) (East side of N. Polk Avenue between W. Shaw and Gettysburg Avenue) (Council District 1) 1.RESOLUTION - Annexing Territory to Community Facilities District No. 11 and authorizing the levy of a special tax 2.RESOLUTION - Calling special mailed-ballot election 3.RESOLUTION -Declaring election results 4.***BILL - (For introduction and adoption) - Levying a special tax for the property tax year 2014-2015 and future tax years within and relating to Community Facilities District No. 11, Annexation No. 57, Final Tract Map No. 5967 RECOMMENDATIONS 1.Adopt Resolution Annexing Territory to Community Facilities District No.11 and Authorizing the Levy of a Special Tax. 2.Adopt Resolution Calling Special Mailed-Ballot Election. 3.Adopt Resolution Declaring Election Results. 4.Adopt Ordinance Levying a Special Tax for the Property Tax Year 2014-2015 and Future Tax Years Within and Relating to Community Facilities District No.11,Annexation No.57, Final Tract Map No. 5967. EXECUTIVE SUMMARY City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-544 Agenda Date:11/20/2014 Agenda #: On October 23,2014,the Council of the City of Fresno (“Council”)adopted Council Resolution No. 2014-168 with the intent to annex territory to Community Facilities District No.11 (“CFD No.11”)at the request of the landowner of Final Tract Map No.5967 (“T5967”).This is the noticed public hearing to consider annexing T5967 as Annexation No.57 to CFD No.11 to provide funding for the operation and reserves for maintenance (“Services”)pertaining to the concrete curbs and gutters, entrance median curbs and hardscaping,sidewalks,curb ramps,interior street paving and street lighting associated with this subdivision.The cost for Services is $158.17/lot annually (totaling $1,898).If approved,the recommended resolutions and ordinance will levy a Special Tax on the properties in T5967 for identified Services. (See attached location and features map) BACKGROUND On November 15,2005,the Council adopted Council Resolution No.2005-490 forming CFD No. 11 to fund the maintenance of landscaping,open spaces,local streets,local street lights and street furniture,curbs,gutters,sidewalks,street trees and other public facilities and services as defined by the City of Fresno Special Tax Financing Law,Chapter 8,Division 1,Article 3 of the Fresno Municipal Code (“City Law”). The landowner of T5967 has petitioned the City of Fresno to be annexed into CFD No.11 to provide funding for the Services pertaining to the concrete curbs and gutters,entrance median curbs and hardscaping,sidewalks,curb ramps,interior street paving and street lighting associated with this subdivision.Pursuant to this petition,the Council adopted Council Resolution No.2014- 168,declared its intention to annex the T5967 to CFD No.11,and set the public hearing for formal consideration. (See attached location and features map) Resolution No.2014-168 also directed the preparation of an Engineer’s Report describing the Services and the costs of those services and this report is on file with the City Clerk. If adopted by the Council,the attached ordinance would levy the proposed Maximum Special Tax of $158.17 per residential lot (totaling $1,898)to provide Services for FY14-15.The Maximum Special Tax will be adjusted upward annually by 3%plus the rise,if any,in the Construction Cost Index for the San Francisco Region. The levy of the special tax is subject to approval by the qualified electors through a special election.Two additional resolutions are attached for Council consideration pertaining to this special election. Today’s public hearing has been duly noticed and the attached ordinance and resolutions have been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this hearing does not qualify as a “project”and is therefore exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-544 Agenda Date:11/20/2014 Agenda #: Local preference was not considered because this hearing does not include a bid or award of a construction or services contract. FISCAL IMPACT No City funds will be involved.All costs for services will be borne by the property owners within the subject tract. Attachments:Location Map Feature Map Resolutions (3) Ordinance City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ CITY OF PUBLIC WORKS DEPARTMENT TRAFFIC AND ENGINEERING SERVICES DIVISION 0t1 FINAL TRACT MAP NO. 5967 HERNDEN - BULLARD _ BARSToV -SHAV - ASHLAN - SH¡ELDS - I,ICKINLEY - BELMENT - CALIFERNIA - JENSEN - NERTH - CENTRAL - AHERICAN - EtrIU'<ZZ, l¡lTUJYaafJq,ur<aJiz**>cù{8ú85ãÉti:7,*l*lı7 ioËHã?üü1àgoñù-¿5¿r¡F-F IJoFt LOCATION MAP ANNEXATION NO. 57 COMMUNITY FACILITIES DISTRICT NO. 11 CffY OF PUBLIC WORKS DEPARTMENT TRAFFIC AND ENGINEERING SERVICES DIVISION FEATURES TO BE ADDED BY ANNEXATION NO. 57 COMMUNITY FACILITIES DISTRICT NO. 11 FINAL TRACT MAP NO. 5967 NOT TO SCALE Scptcmbcr 15, 2014 CONCRETE IM PROVEMENTS: CURB & GUTTER : 918 LF SIDEWALK & CURB RAMPS : 4,854 SF ENTRANCE MEDIAN CURB : 51 LF MEDIAN HARDSCAPE : 189 SF INTERIOR PAVEMENT: TOTAL ARFA : 14,952 SF NOTE: Property owners of lot number one (1) shall be responsible for the maintenance of the landscaped area, trees and irrigation fronting along North Polk Avenue adjacent to their lot. WEST SANTA ANA AVENUE WEST SANTA ANA AVENUE I.L¡fztu vJoo- Il-ú.oz. (n TU kF(n z, LUlz LrJ (nl(J ú. É =t-ú.oz. WEST ACACIA AVENUE WEST SAN GABRIEL AVENUE "/ RESOLUTION NO. A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, TO ANNEX TERRITORY TO COMMUNITY FACILITIES DISTRICT NO. 11 AND AUTHORIZING THE LEVY OF A SPECIAL TAX FOR ANNEXATION NO. 57 WHEREAS, on October 23, 2014, the Council of the City of Fresno ("Council") adopted Resolution No.2014-168 to Annex Final Tract Map No.5967 to the City of Fresno, Community Facilities District No. 11 ("CFD No. 11") andtoAuthorizethe Levyof Special Taxes, pursuant to the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code ("City Law"); and WHEREAS, Resolution No. 2014-168, incorporating a map of the area proposed for annexation to CFD No. 11, and stating the Services (as hereafter defined) to be provided, the estimated maximum cost of providing such Seruices, and the rate and method of apporlionment of the special tax to be levied within Annexation No. 57 of CFD No. 11 to pay for the Seruices with respect to Annexation No. 57 of CFD No' 11, is on file with the City Clerk of the City of Fresno ("City Clerk"), and the provisions thereof are incorporated herein by this reference as if fully set forth herein; and WHEREAS, on this date, this Council held a noticed public hearing, as required by City Law and Resolution No. 2014-1 68, concerning the annexation of territory to the CFD No. 1 1; and WHEREAS, at the hearing all interested persons desiring to be heard on the annexation of territory to the CFD No. 11, the facilities and seruices to be provided therein, and the levy of said special tax were heard; and Date Adopted: Date Approved: Effective Date: City Attorney Approval : 1of 5 Resolution No. WHEREAS, at the hearing evidence was presented to this Council on the proposed annexation before it, including a reporl by the Public Works Director ("District Repoft") as to the seruices to be provided through the CFD No. 11 and the costs thereof, and a copy of the District Report is on file with the City Clerk; and WHEREAS, the City Clerk or designee did not receive written protests with respect to the proposed annexation, the specified types of services to be furnished therein, or the rate and method of apporlionment of the special taxes therein, from at least 50 percent (SO%) of the registered voters residing within the territory proposed to be annexed, or from properly owners not exempt from the special tax and owning at least one-halt (/z) of the area of land within the proposed annexation; and WHEREAS, the special tax proposed to be levied upon the territory, if annexed, to pay for the proposed Services (set forth in page A-1 of Exhibit A hereto), has not been eliminated through protest of at least fifty percent (50%) or more of the registered voters residing within the territory proposed for annexation, or through protests of landowners not exempt from the special tax and owning at least one-half (yz) of the area of land within the proposed annexation. NOW, THEREFORE, BE lT RESOLVED by the council of the city of Fresno as follows: 1. Recitals. The foregoing recitals are true and correct. 2. No Maioritv Protest. The proposed special tax to be levied within the proposed annexation has not been precluded by majority protest pursuant to City Law. 3. prior proceedings. The Council duly considered all prior proceedings for the proposed annexation and the levy of the special tax therein, and finds and determines that the proceedings are valid and conform to the requirements of City Law. This Council finds 2of5 and determines that the proposed annexation conforms to the goals and policies that this Council adopted respecting the formation of CFD No. 11' 4. Boundaries Described. The boundaries of the proposed annexation, set fofth in the map of the area proposed for annexation to CFD No. 11, recorded in the Fresno County Recorder's Office in Book 44 aT page 22 oÍ Maps of Assessment and Community Facilities Districts, are approved, incorporated herein by reference, and shall be the boundaries of the CFD No. 11. S. Services. The types of public services proposed to be financed by Annexation No. 57 of cFD No. 11 and pursuant to city Law are those listed as seruices on page A-1 of Exhibit A in the District Report on file with the City Clerk (the "Services")' A copy of which is attached as Exhibit A and incorporated herein by this reference. 6. Special Taxes. Except to the extent that funds are othenrvise available to CFD No. 11 to pay for the Services, a special tax sufficient to pay the costs thereof, secured by a continuing lien against all nonexempt real property in CFD No. 11, including the territory to be annexed, will be levied annually within CFD No. 11, and collected in the same manner as ordinary ad valorem properly taxes or in any other manner as this Council or its designee shall determine, including direct billing of the affected property owners. The proposed rate and method of apporlioning of the special tax among the real property parcels within the territory of the proposed annexation, in sufficient detail to allow each landowner within the territory of the proposed annexation to estimate the probable maximum amount such owner must pay, are described in the District Report on file with the City Clerk and attached hereto as Exhibit B and incorporated herein by this reference. 7. Tax Collection Authoritv. The Public Works Director of the City of Fresno or his designee, 2600 Fresno Street, Fresno, California 93721telephone number (559) 3of5 621-14g2 is the officer who will be responsible for preparing annually a current roll of special tax levy obligations by assessor's parcel number and which will be responsible for estimating future special tax levies pursuant to city Law. L Tax Lien. Upon recordation of a notice of special tax lien, pursuant to section 3114.5 of the california streets and Highways code, a continuing lien to secure each levy of the special tax shall attach to all nonexempt real property in the proposed annexation area. This lien shall continue in force and effect until the special tax obligation ceases and the lien is canceled in accordance with law or until collection of the tax by the City ceases. g, Appropriations Limit. ln accordance with City Law, the annual appropriations limit, as defined by subdivision (h) of Section I of Article Xlll B of the California Constitution, of the proposed annexation, is hereby preliminarily established at $500,000.00 and said appropriations limit shall be submitted to the voters of the proposed annexation as hereafter provided. The proposition establishing said annual appropriations limit shall become effective if approved by the qualified electors voting thereon and shall be adjusted in accordance with the applicable provisions of City Law. 10. Election. Pursuant to the provisions of City Law, the levy of the special tax and the proposition to establish the appropriations limit specified above shall be submitted to the qualified electors of the proposed annexation at an election the time, place and conditions of which election shall be as specified by a separate resolution of this Council. 11. Effective Date. This Resolution shall take effect upon its adoption. Attachments: Exhibit A - Description of Services Exhibit B - Rate and Method of Apportioning of special Tax 4of5 ************** STATE OF CALIFORNIA ) COUNTYOF FRESNO ) ss. crrY oF FRESNO ) l, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2014. AYES :NOES : ABSENT : ABSTAIN : Mayor Approval:2014 2014Mayor Approval/No Return: Mayor Veto:,2014 ,2014Council Override Vote: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE YVONNE SPENCE, CMC City Clerk BY: Deputy BY: Raj Singh Badhesha, DePutY 5of5 EXHIBIT A CITY OF FRESNO Community Facilities District No. 11 Annexation No.57 Description of Services to be financed by Gommunity Facilities District No. 11 for Annexation No. 57 (FinalTract Map No.5967) The services and operations that are to be financed ("Services") by Community Facilities District No. 11 (,,CFD No. 1i"¡ for Final Tract Map No. 5967, Annexation No. 57 are generally as described below. Services shall include all costs attributable to cleaning, maintaining, servicing, repairing and/or replacing all ground level infrastructures (including reserves for replacement) within public street rights-oÈway.- Such facilities include, without limitation, concrete curbs and gutters, entrance räd¡an curbs, median hardscape, valley gutters, curb ramps and sidewalks, street name signage, and street lighting, and interior local street paving associated with these subdivisions. Services shall include all costs attributable to street lighting services' Maintenance costs will include a proportionate share of all other expenses that the City of Fresno ("City") may incur in administering CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City. Nothing in this exhibit or any other exhibit or provision of this Resolution shall be construed as commiíting the City or CFD No. 11 to provide all of the authorized Services or to provide for the payment óf or reimbursement for all of the authorized incidental expenses. The provision of beiv¡ces and/or payment or reimbursement of incidental expenses shall be subject to the successful annexation of Annexation 50 to CFD No. 11 and the availability of sufficient proceeds of Special Taxes within CFD No. 11. A-1 EXHIBIT A CITY OF FRESNO Community Facilities District No. 11 Formation Description of Services currently financed by Community Facilities District No. 11 The services that are to be financed ("Services") by Community Facilities District No. 11 ("CFD No. 1 1") are any and all Services defined by City of Fresno Special Tax Financing Law (Chapter I' Divísion 1, Ârticle 3 of the Fresno Munióipal-Code) and the Mello-Roos Community Facilities Act of 1gg2 (Chapter 2.b commencing with Section 53311, of Part 1, Division 2, Title 5 of the California Government Code.) l. Services may include all costs attributable to maintaining, servicing, cleaning, repairing and/or reptaóing allfacilities, including ha ped areas (may includ reserves for rep"lacement) in public street landscape easements, public trail areas, parkways, anó other similar la ally dedicated for public use. ll. General maintenance will include, without limitation, mowing, edging, fertilizing, seeding, aerating, and watering grass areas; repairing and replacing irrigation systems as necessary; staking, piuñing, replacing and spraying of trees and shrubs; repairing and replacing paths, walkways and trails; removing litter, debris, and garbage. ll. Services may include all costs attributable to cleaning, maintaining, servicing, repairing and/or reptaóing all loã ground level street infrastructure (may include reserves for replacement)w-itfrin localétreet rights-of-way. Such facilities may include, without limitation, stieet paving, curbs and gutters, ðidewalks, street lighting, hydrants, inlets, street trees and street furniture. lll. Services may include costs attributable to police, fire, traffic control, street lighting and recreational services. Maintenance costs will also include a proportionate share of all other expenses that the City of Fresno ("City") may incur in administering the CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City' Nothing in this Exhibit B or any other exhibit or provision of this resolution shall be construed as commiiting the City or CFD ruó. I I to provide all of the authorized Services or to provide for.the payment ıf or reimbursement for all of the authorized incidental expenses. The provision of 'Seiv¡ces andlor payment or reimbursement of incidental expenses shall be subject to the continued existence of CFD No. 11 and the availability of sufficient proceeds of special taxes within the cFD No. 11. A-2 EXHIBIT B CITY OF FRESNO Community Facilities District No. 11 Annexation No.57 Rate and Method of Apportionment of Special Tax Cost Estimate The estimate breaks down the costs of providing 1 year's seruice for FY 2014-2015 ITEM DESCRIPTION EST¡MATED COST 1 Reserve for RePlacement 2 lncidental Expenses $1 ,718.00 $180.00 Total $1,898.00 Subdivision ApproPriation Limit FINAL TRACT MAP NO, MAX. SPECIAL TAX PER RESIDENTIAL UNIT TOTAL TAXABLE UNITS APPROPRIATION LIM IT SUBDIVIDER 5967 $158.17 12 $500,000.00 ABN lnvestments, LLC 8,1 EXHIBIT B City of Fresno Community Facilities District No. 11 Annexation No.57 Rate and Method of Apportionment of Special Tax A Special Tax applicable to each assessor's parcel in Community Facilities District No' 11 ('CFD No. 1i") shall be levied and collected according to the tax liability determined Oy ine City Council of the City of Fresno, through the application of the appropriate amount or rate for taxable properly, as described below. All of the property in CFD No. 11, unless exempted by law or by the provisions of Section E below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property subsequently annexed to CFD No. 11 unless a separate Rate and Method of Apportionment of Special Tax is adopted for the annexation area. A. DEFINITIONS The terms hereinafter set forth have the following meanings: ,,Assessor's Parcel" or "Patcel" means a lot or parcel shown on an assessor's parcel map with an assigned assessor's parcel number' ,,Assessor's Parcel Map" means an official map of the County Assessor of the County of Fresno designating parcels by assessor's parcel number. "City" means the CitY of Fresno. ,,City Law" means the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Arlicle 3, of the Fresno Municipal Code' ,,Council" means the City Council of the City of Fresno, acting as the legislative body of CFD No. 11. ,,Developable Lot" means a lot that is anticipated development of residential or non- residential uses, and which is not an outlot, remainder parcel or other parcel which is not intended to be developed or which must be further subdivided before being developed. ,,Exctuded parcels" means those assessor's parcels identified as ineligible for inclusion in CFD No. 11 as shown in "Attachment 1" of this Rate and Method of Apportionmentof Special Tax. "Final Map" means a final map, or portion thereof, approved by the C_ouncil of the City of Fresno pursuant to the Subdivìsion Map Act (California Government Code Section 66410 et seq.) that creates individual developable lots for which building permits may be issued' The teim "Final Map" shall not include any assessor's parcel map or subdivision map or B-2 EXHIBIT B poftion thereof that does not create individual developable lots for which a building permit may be issued, including assessor's parcels that are designated as remainder parcels' ,,Fiscal Yeaf'means the period starting April 1 and ending on the following March 31. ,,Maximum Special Tax" means the maximum special tax, determined in accordance with Section C, which can be levied in any Fiscal Year. ,,proportionately" means, in any fiscal year, that the ratio of the actual Special Tax to the Maximum Special Tax is equal for all assessor's parcels in CFD No. 11' ,,public Property" means any property within the boundaries of CFD No' 11 that is owned by the federal government, the State of California or other local governments or public agencies, ,,Reserve for Replacement" means a reasonable reserve pursuant to Fresno Municipal Code g-1-303(e¡ (+¡, as a seryice cost or expense and not as payment for public facilities under Government Code Section 53321(d). ,,Residential Unit" means a residential dwelling unit and shall include single-family unattached homes, condominiums, town homes, duplex, triplex and fourplex units, and individual apartment units in a multi-family building. For purposes of the levy of special taxes pursuant to Section C below, "Resid'ential Units" shall include dwelling units already built on taxable property in CFD No. 11, as well as dwelling units planned, but not yet built, when the special tax is levied each fiscal year. ,,Shared Services" means the costs of services are paid equally by the propefty owners of two or more subdivisions. ,,Special Tax" means any special tax to be levied each fiscal year on assessor's parcels of iaxable properly to fund the Special Tax Requirement as defined below. ,,Special Tax Requirement" means the amount necessary in any fiscal year to (i) paY authorized mainteñance and improvement expenses, (ii) pay administrative expenses of CFD No. 11, and (iii) cure any delinquencies in the payment of special taxes levied in prior fiscal years oi lbaseO on delinquencies in the payment of special taxes which have already takên ptace) are expected to occur in the fiscal year in which the tax will be collected. ,,subdivision" means the division, by any subdivider, of any unit or units of improved or unimproved land, or any porlion thereof, shown on the latest equalized county asseðsment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing whether immediate or future. Properly shall be considered as contiguous units, even if it is separated by roads, streets, utility easement or railroad rights-of-way. ,'subdivision" includes a côndominium project, as defined in Section 1351 of the Civil Code, a community aparlment project, as defined in Section 1351 of the Civil Code. B-3 ,,Taxable property', means all of the assessor's parcels within the boundaries of CFD No. 11 which "r" nät exempt from the special tax pursuant to law or Section E below' B. CALCULATION OF RESIDENTIAL UNITS On April 1 of each fiscal year, the City of Fresno ("City") or its designee shall determine how many residential uniís are built, ór allowed to be built, on assessor's parcels within CFD No. 11. for pàicets of undeveloped properly zoned for development of single-family units attached, thä number of residóntiai units ârrall oe determined by referencing the condominium plan, apartment plan site plan or other development plan, or by assigning the maximum allowable units permitted based on the underlying zoning for the parcel' Once a single-family attacneo ou¡lo¡ng or buildings have been built on an assessor's parcel, the -City or- ú. designee shall ãetermine the actual number of residential units contained within the buildin! or buildings, and the special tax levied against the parcel in the next fiscat year shall bı calculateð Oy dividing the Specia! Ta1 Requirement bV tltg actual number of residential units not to eiceed thé Maximum Special Tax per residential unit identified for the final map in section c, Table 1 below. C. MAXIMUM SPECIAL TAX The Maximum special Tax (MST) applicable to each assessor's parcel in cFD No' 11 shall be specific to each final map'*itnin CFD No. 11. When additional property is annexed to cFD No. 11, the rate and method adopted for the annexed property shall reflect the MST for the final map or final ma )s then annexed. The Maximum special Tax for Fiscal year 201 4-2015 for a residential unit within Final Tract Map No. 5967 is identified in Table 1 below: "Beginning in January of each year, the MST shall be adjusted upward annüally b:y g% ptus ine rise, if any, in the Construction Cost lndex (CCl) for the San Francisco Region for the þrior 12-month period (December through December) as publisfréC ¡n the Enqineerinq-News.Record, or published in a comparabl'e inoex if the Enqineerinq News Record is discontinued or othenruise not availaute. racn annual adjustment of the MST shall become effective on the subsequent July 1. *" A Special Tax shall be levied on all parcels within an identified final map ô excluded parcels as identified in Attachment 1' EXHIBIT B Table 1 Maximum SPecial Tax (Fiscal Year 201 4-201 5). $158.17 per Residential Unit B-4 EXHIBIT B D. METHOD OF LEVY AND COLLECTION OF THE SPECIAL TAX Commencing with Fiscal Year 201 4-2015, the Special Tax shall be levied on all taxable parcels as follows: Determine the Special Tax Requirement (as defined in Section A above) for the fiscal year in which the Special Tax will be collected; Step 1: Step 2: Calculate the total special tax revenues that could be collected from taxable property within CFD No. 11 based on applying the Maximum Special 'Tax raies determined pursuant to Section C above to the number of residential units on each parcel of taxable properly in CFD No' 11; lf the amount determined in Step 1 is qreater than or equal to the amount calculated in Step 2,levy the Maximum Special Tax set fotlh in Table 1 above on all parcels of taxable property in CFD No. 11; lf the amount determined in Step 1 is less than the amount calculated in Step 2, levy the Special Tax proporlionately against all parcels of taxable proþerty up to 1OO% of the Maximum Special Tax for each subdivision as identified in Table 1, until the amount of the Special Tax levy equals the Special Tax Requirement for that fiscal year. The special Tax for cFD No. 11 shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that CFD No. 11 may (under the authority of Government Code 53340), in any particular case, bill the taxes òirec¡y to the propórty owner off of the County of Fresno tax roll, and the Special Taxes will be equally subject to penalties and foreclosure if delinquent. E. EXEMPTIONS Notwithstanding any other provision of this Rate and Method of Apportionment of Special Tax, no Speciãl Táx shall' be levied on parcels that have been conveyed to a. public agency, except as othenruise provided in City Law. ln addition, no Special Tax shall be lev¡eO on excluded parcels or parcels that are determined not to be developable lots. B-5 EXHIBIT B ATTACHMENT "1'' City of Fresno Community Facilities District No. 11 Annexation 57 Excluded Parcels THERE ARE NO EXCLUDED PARCELS IN FINAL TRACT MAP NO. 5967 B-6 RESOLUTION NO. A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, CALLING SPECIAL MAILED-BALLOT ELECTION COMMUNITY FACILITIES DISTRICT NO. 11 ANNEXATION NO. 57 WHEREAS, on October 29, 2014, the Council of the City of Fresno ("Council") adopted Resolution No. 2014-168 to annex Final Tract Map No. 5967 to City of Fresno Community Facilities District No. 11 ("CFD No. 11") and to authorize the levy of special taxes; and WHEREAS, Resolution No. 2014-168 identified the seruices to be provided by Annexation No. 57 of CFD No. 11 and provided an estimate of the cost of providing those seruices; and WHEREAS, Resolution No. 2014-168 contemplated the imposing of a special tax upon those properlies within Annexation No. 57 of CFD No. 11 receiving said seruices; and WHEREAS, a repoft has been filed with the City Clerk of the City of Fresno ("City Clerk") that describes the proposed rate and method or apportionment of the special tax among the parcels of real property proposed to be annexed to CFD No. 11 in sufficient 1of 7 Date Adopted: Date Approved: Effective Date: City Attorney Approval: Resolution No. detail to allow all interested parties to estimate the maximum amount each property owner must pay; and WHEREAS, the levy of said proposed special tax shall be subject to the approval of the qualified electors of the territory proposed to be annexed to CFD No. 11 at a special election; and WHEREAS, the Public Works Director has filed a Certificate (the "Certificate") in these proceedings providing that fewer than twelve (12) registered voters reside within the boundaries of the territory proposed for annexation to CFD NO. 11. NOW, THEREFORE, BE lT RESOLVED by the Council as follows: 1. The levy of a special tax proposed in Resolution No. 2014-168 shall be submitted to the voters pursuant to the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code ("City Law"). 2. The setting of the appropriations limit shall be submitted to the voters pursuant to City Law. g. The two ballot items described above shall be combined into a single ballot measure pursuant to City Law. The ballot language shall be as shown on the ballot form attached as Exhibit A, which is hereby approved. 4. This Council accepts the Certificate of the Public Works Director filed in these proceedings and, based on the Certificate, finds that fewer than twelve (12) registered voters reside within the boundaries of the territory proposed to be annexed to CFD No. 11. Accordingly, under City Law the voters in this election shall be the landowners owning land within the territory proposed to be annexed to CFD No. 11. 2of7 5. The Council further finds that the landowners of record owning property within the territory proposed to be annexed to CFD No. 11 are those set fotlh in the attachment to the Cerlificate and that the attachment correctly sets forth how much property owned by each landowner and the number of votes to which each is entitled. O. This Council approves the form, attached behind Exhibit A, attached as Exhibit B, entitled Waiver and Consent From Sole Properly Owner Shortening Time Periods and Waiving Various Requirements for Conducting Mailed-Ballot Election in CFD No. 11, Annexation No. 57, City of Fresno, County of Fresno, State of California. This Council finds that the rights, procedures and time periods therein waived are solely for the protection of the voters, may be waived under City Law, and that the waiver constitutes a full and knowing waiver by any voter who has executed the form of these rights, procedures and time periods. 7. Accordingly, this Council calls the special election described herein and sets November 20, 2014 as Election Day. Pursuant to City Law, the election shall be conducted by mailed ballot. 8. The City Clerk or designee is directed to mail or to deliver the ballots, in the form of Exhibit A hereto, to the landowners shown on the attachment to the Certificate. The City Clerk or designee shall fill in the names of the landowners and the number of votes to be cast on each ballot, according to the Certificate, before delivery or mailing. g. The City Clerk or designee shall accept personal or mail delivery of the ballots at any time up to the hearing on November 20,2014. Upon receipt of all eligible ballots, however, the City Clerk or designee shall immediately close the election and declare the results to the Council. 3of7 Attachments: Exhibit A - Special Election Ballot Exhibit B - Waiver and Consent From Sole Propefty Owner ***********r STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. crTY oF FRESNO ) l, YVONNE SPENCE, City Clerk of the City of Fresno, cerlify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2014. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: Mayor Approval/No Return: ,2014 ,2014 ,2014 ,2014 Mayor Veto: Council Override Vote: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE YVONNE SPENCE, CMC City Clerk BY: Deputy BY: Raj Singh Badhesha, DePuty 4of7 EXHIBIT A SPECIAL ELECTION BALLOT (Mailed-Ballot Election) Community Facilities District No. 11 Annexation No.57 This ballot is for the use of the ABN lnvestments, LLC, the sole landowner owning land (Final Tract Map No. 5967) within Community Facilities District No. 11, Annexãtion No. 57, City of Fresno, County of Fresno, State of California. According to the provisions of the City of Fresno Special Tax Financing Law, Chapter B, Division 1, Article 3, of the City of Fresno Municipal Code, and the resolutions of the City Council of the City of Fresno, the above-named landowner is entitled to cast two (2) votes on this ballot. ln order to be counted, the ballot must be returned prior to the hearing on November 20,2014, aT 10:00 a.m., to Yvonne Spence, CMC, City Clerk, City of Fresno, 2600 Fresno Street, Room 2133, Fresno, CA93721' Mailing by that date will not be sufficient. The ballot must be physically received by the City Clerk prior to the deadline in order to be counted. AN "X" OR OTHER MARK WILL CAST ALL VOTES ASSIGNED TO THIS BALLOT, OR THE VOTER MAY WRITE NUMBERS IN THE SPACES PROVIDED BALLOT MEASURE Shall the City of Fresno be authorized to levy a special tax, and finance the authorized services, and costs and expenses by and through its Community Facilities District No. 11, Annexation No. 57, all as specified in its Council Resolutions No. and No. ; and shall the appropriations limit for Community Facilities District No. 11 Annexation No. 57 be established in accordance therewith? Number of Votes YES Number of Votes NO 5of7 EXHIBIT A CERTIFICATION The undersigned is the authorized representative of the above-named landowner and is the person legally authorized and entitled to cast this ballot on behalf of the above-named landowner. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on 2014. Company Name: By: Print Name: Print Title: (Attach Notary Acknowledgment) 6of7 EXHIBIT B WAIVER AND CONSENT FROM SOLE PROPERTY OWNER SHORTENING TIME PERIODS AND WAIVING VARIOUS REQUIREMENTS FOR CONDUCTING MAILED.BALLOT ELECTION Community Facilities District No. 11, Annexation No. 57 The undersigned is the person legally entitled and authorized to cast the ballots as the authorized representative of the sole owner of the property (Final Tract Map No, 5967) in this mailed-ballot election to be conducted within Community Facilities District No. 11 Annexation No. b7, to determine, among other things, whether the rate and method of apportionment of the annual special taxes shall be approved. The undersigned hereby waives any and all minimum time periods relative to the election pursuant to the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code ("City LaW'). The undersigned hereby waives the preparation and distribution of an impartial analysis of the ballot measule, as well as arguments in favor and against, under the authority of City Law. The undersigned hereby waives the requirement to publish notice of the election under City Law. The undersigned hereby waives the requirements regarding the time to mail ballots to the qualified electors under Elections Code Section 4101, and agrees to accept either mailed service or personal service of the ballot. The undersigned hereby waives the requirements regarding identification envelopes for the return of mailed ballots contained in City Law. The undersigned hereby waives any and all defects in notice or procedure in the conduct of the election, whèther known or unknown (other than the right to have ballots accurately counted), and states that the election is being expedited, pursuant to this waiver and consent, at the particular instance and request of the undersigned' I declare, under penalty of perjury, under the laws of the State of California, that I am the person legally entitled and authorized to cast the ballot as the authorized representative of the iandownei set forth in the first paragraph hereof, and to waive and consent to the above, that the foregoing waivers and consents are voluntarily given and that this declaration is executed on 2014. Company Name By: Print Name Print Title 7 of 7 RESOLUTION NO. A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, DECLARING ELECTION RESULTS COMMUNITY FACILITIES DISTRICT NO. 11 ANNEXATION NO. 57 WHEREAS, on November 20,2014, the Council of the City of Fresno ("Council") adopted Councit Resolution No. 2014 calling a special mailed'ballot election on levying special taxes on land within, and on approving an annual appropriations limit for Annexation No. 57 to Community Facilities District No, 11 ("CFD No. 11"); and WHEREAS, the Council has received, reviewed and hereby accepts the City of Fresno City Clerk's ("City Clerk') Canvass and Statement of Election Results, dated 2014, a copy of which is attached as Exhibit A; NOW, THEREFORE, BE lT RESOLVED by the Council of the Gity of Fresno as follows: 1. The Council finds and declares that: (a) the ballot measure on the levy of taxes and approval of an annual appropriations limit for Annexation No. 57, has been submitted to the qualified electors within the area of Annexation No. 57, pursuant to Council Resolution No. 2014 --, and (b) the ballot measure has been passed and approved by more than two-thirds of the votes cast, in accordance with City of Fresno SpecialTax Financing Law, Chapter g, Division 1, Article 3, of the Fresno municipal Code ("City Lavü'). 1 ol4 Date Adopted: Date Approved: Effective Date: City Attomey Approval: Resolution No. 2. The Council declares Annexation No. 57 to be fully formed and the propefty within Annexation No, 57, to be subject to the levy of the special taxes and the special tax lien described in Council Resolution No. 2014 --, annexing Final Tract Map No. bg67 as Annexation No. 57, and authorizing the levy of a special tax therein, and Council Resolution No,97-126, approving local goals and policies for Community Facilities Districts, as described in the Community Facilities District Report dated as of October 27, 2014, on file with the CitY Clerk. 3. The Council directs the City Clerk or designee to record a notice of special tax lien in the Office of the County Recorder, pursuant to City Law, no later than 15 days after this resolution is adoPted. Attachment: Exhibit A - Canvas and Statement of Election Results ************** 2 o14 STATE OF CALIFORNIA COUNTY OF FRESNO CITY OF FRESNO l, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2014. AYES NOES ABSENT ABSTAIN Mayor Approval:2014 Mayor Approval/No 2014 Mayor Veto:,2014 Council Override Vote:2014 YVONNE SPENCE, CMC City Clerk BY: Deputy APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE BY: Raj Singh Badhesha, DePutY Return: 3of4 EXHIBIT A CANVAS AND STATEMENT OF ELECTION RESULTS Community Facilities District No. 11 Annexation No.57 l, YVONNE SPENCE, City Clerk of the city of Fresno, hereby cefiify: I have personally received and assembled all ballots eligible to be cast in the special mailed-ballot, landowner election called by the Council of the City of Fresno in its Council Resolution No. 201 4--on propositions to levy a special tax within and approve an appropriations limit for Community Facilities District No. 11, Annexation No. 57, and held on November 20,2014. ln accordance with my instructions contained in that Resolution, I hereby declare the election closed. I personally, in the presence of members of City of Fresno staff representing the public Works Depadment, as well as the City Clerk's Office, have counted the ballots and canvassed the returns of such election, and hereby certify that the result of that count is as follows and that the following total votes cast for and against such propositions, the total votes and the percentage of "yes" votes cast are true and correct, Total Votes that could be cast 2 Total Votes Cast "Yes 2 Total Votes Cast "No" 0 Total Votes Cast 2 The Votes cast "Yes" equal 100% of the total votes cast. I make this cerlification on ATTEST: ,2014. Deputy 4oÍ4 Yvonne Spence, CMC By Crty ()lÉo=GllSr2-:f¡-tç-I?iE7¿¡rr= PUBLIC WORKS DEPARTMENT Tratfic and Engineeilng Services Division City Hall, 2600 Fresno Street, Boom 4064 Fresno, CA 93721-3615 Ph, 559-621-8800 - FAX 559-498-1439 $rys.Jles¡-a--sp! October 24,2014 Raj Singh ABN lnvestments, LLC 3447 North Gleo Avenue Fresno, CA 93722 Dear Mr. Singh, SUBJECT: Ballot for Community Facilities District No. 11, Annexation No. 57, Final Tract Map No. 5967. This letter is to summarize actions which need to be taken by an authorized representative of ABN lnvestments, LLC with respect to Community Facilities District No. 11, Annexation No, 57, Final Tract Map No. 5967 prior to the public hearing and special election scheduled for Thursday, November 20,2014, at 10:00 a,m. Execution of Ballot Enclosed is a copy of the official ballot, showing that ABN lnvestments, LLC is the owner of the subject propefty. The ballot must be executed by an authorized signatory of ABN lnvestments, LLC. Waiver and Consent Enclosed is a Waiver and Consent to be signed by an authorized signatory of ABN lnvestments, LLC. The siqnature of this person must be notarized. Deadline The signed and notarized documents must be returned prior to the hearing scheduled for Thursday, November 20, 2014, at 10:00 a.m., in order for this matter to proceed. The Traffic and Engineering Services Division requires confirmation that the documents have been suþmitted prior to the hearing. All forms may be delivered or mailed to the City Clerk's office: Yvonne Spence, CMC, City Clerk City of Fresno 2600 Fresno Street, Room 2133 Fresno, CA 93721-3623 Sincerely, Yvonne Spence, CMC City Glerk l4's1t¡ ' ttfzof,t;¡ R ECEIVED ¡tlil i!üU 5 Pn 3 3? CITY CLERI{, FRESNO CA Enclosures:Ballot, Waiver and Consent EXHIBIT A SPECIAL ELECTION BALLOT (Mailed-Bal lot Election) Community Facilities District No. 11 Annexation No. 57 This ballot is for the use of the ABN lnvestments, LLC, the sole landowner owning land (Final Tract Map No. 5967) within Community Facilities District No. 11, Annexation No. 57, City of Fresno, County of Fresno, State of California. According to the provisions of the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the City of Fresno Municipal Code, and the resolutions of the City Council of the City of Fresno, the above-named landowner is entitled to cast two (2) votes on this ballot. ln order to be counted, the ballot must be returned prior to the hearing on Thursday, November 20,2014, al 10:00 a.m., to Yvonne Spence, CMC, City Clerk, City of Fresno, 2600 Fresno Street, Room 2133, Fresno, CA93721. Mailing by that date will not be sufficient. The ballot must be physically received by the City Clerk prior to the deadline in order to be counted. AN "X" OR OTHER MARK WILL CAST ALL VOTES ASSIGNED TO THIS BALLOT, OR THE VOTER MAY WRITE NUMBERS IN THE SPACES PROVIDED BALLOT MEASURE Shall the City of Fresno be authorized to levy a special tax, and finance the authorized services, and costs and expenses by and through its Community Facilities District No. 11, Annexation No. 57, all as specified in its Council ResolutionsNo. and No. ; and shall the appropriations limit for Community Facilities District No. 11 Annexation No. 57 be established in accordance therewith? Nu tes EXHIBIT A CERTIFICATION The undersigned is the authorized representative of the above-named landowner and is the person legally authorized and entitled to cast this ballot on behalf of the above-named landowner. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ñ0'V' rn s-, c¡+/4 ,2014. Company Name: 4,ßÑ fr{Uesqr\4¿^rr<, Lår Print Name:Rer S,¡6tr Print Tite: &""ì n* t (Attach Notary Acknowledgment) EXHIBIT B WAIVER AND CONSENT FROM SOLE PROPERry OWNER SHORTENING TIME PERIODS AND WAIVING VARIOUS REQUIREMENTS FOR CONDUCTING MAILED-BALLOT ELECTION Community Facilities District No. 11, Annexation No. 57 The undersigned is the person legally entitled and authorized to cast the ballots as the authorized representative of the sole owner of the property (Final Tract Map No. 5967) in this mailed-ballot election to be conducted within Community Facilities District No. 11 Annexation No. 57, to determine, among other things, whether the rate and method of apportionment of the annual specialtaxes shall be approved. ïhe undersigned hereby waives any and all minimum time periods relative to the election pursuant to the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code ("City Lau/'). The undersigned hereby waives the preparation and distribution of an impartial analysis of the ballot measure, as well as arguments in favor and against, under the authority of City Law. The undersigned hereby waives the requirement to publish notice of the election under City Law. The undersigned hereby waives the requirements regarding the time to mail ballots to the qualified electors under Elections Code Section 4101, and agrees to accept either mailed service or personaf service of the ballot. ïhe undersigned hereby waives the requirements regarding identification envelopes for the return of mailed ballots contained in City Law. The undersigned hereby waives any and all defects in notice or procedure in the conduct of the election, whether known or unknown (other than the right to have ballots accurately counted), and states that the election is being expedited, pursuant to this waiver and consent, at the particular instance and request of the undersigned. I declare, under penalty of perjury, under the laws of the State of Califomia, that I am the person legally entitled and authorized to cast the ballot as the authorized representative of the landowner set forth in the first paragraph hereof, and to waive and consent to the above, that the foregoing waivers and consents are voluntarily given and that this declaration is executed on Î../auø.raen 5 ,2014. company Name A RN l*.1asr t, al "S , L Ct av' R't)?,,{t' ePPæì¡eN r) Rnr gN GLtPrint Name Print riile Pgr-.ì>en r ACKNOWLEDGMENT State of California County e¡ Fresno On November 5,2014 before,", Sukhpal Hayer-Notary Public (insert name and title of the officer) personally appeared Raj Singh who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature BILL NO. ORDINANCE NO. AN ORDINANCE OF THE CITY OF FRESNO, CALIFORNIA, LEVYING A SPECIAL TAX FOR THE PROPERTY TAX YEAR 2014-2015 AND FUTURE TAX YEARS WITHIN AND RELATING TO COMMUNITY FACILITIES DISTRICT NO. 1 1, ANNEXATION NO, 57 WHEREAS, on November 20,2014, the Council of the City of Fresno ("Council") adopted Council Resolution No. 201 4 --, a resolution of the Council annexing territory to Community Facilities District No. 11 as Annexation No. 57, authorizing the levy of a special tax therein to pay for certain facilities and services for Annexation No. 57, and preliminarily establishing an appropriations limit therefore ("Annexation Resolution"), pursuant to the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code ("City Law"); and WHEREAS, by Council Resolution No. 201 4 --, the Council called a special election on the proposition on levying a special tax and establishing an appropriations limit within Annexation No. 57; and WHEREAS, on November 20,2014, an election was held within Annexation No, 57 and, as required by City Law, the ballot measure was passed and approved by more than two-thirds of the votes cast. THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS FOLLOWS: 1. Pursuant to City Law, and in accordance with the Rate and Method of Apportionment of Special Tax as shown in Exhibit B to the Annexation Resolution, a special tax is hereby authorized and levied on all taxable parcels within Annexation No. 57 for the 201 4-2015 fiscal year and for each future fiscal year at the same or at a rate lower than the maximum rate of tax provided in Exhibit B to the Annexation Resolution' By a resolution of this Council, the tax rate may be adjusted annually, subject to such maximum rate of tax. The special taxes levied in any fiscal year on any parcel within Annexation No. 57 shall not exceed the maximum special tax specified in Exhibit B to Page 1 of 3 Date Adopted: Date Approved Effective Date: City Attorney Approval: Ordinance No. the Annexation Resolution. 2. The Public Works Director or his designee is authorized and directed, with the aid of the appropriate officers and agents of the City of Fresno ("City of Fresno"), to determine each year, the Special Tax Requirement (as that term is defined in Exhibit B of the Annexation Resolution), to prepare the annual special tax roll in the amount of Special Tax Requirement in accordance with said Exhibit B and, without fufther action of this Council, to provide all necessary and appropriate information to the County of Fresno ("County") Auditor in the form, and within the time, necessary to effect the correct and timely billing and collection of the special tax on the secured property tax roll of the County. The special tax shall be levied and collected in the same manner, shall be subject to the same penalties and the same lien priority, and the same procedure and sale for delinquency, as for ad valorem taxes. Notwithstanding the foregoing, as set forth in the Annexation Resolution and City Law, this Council reserves the right to use any method of collecting the special tax, which the Council, from time to time, may determine to be in the best interests of the City including, without limitation, direct billing by the City to the propefty owners and supplemental billing. The Public Works Director or his designee is further authorized and directed to furnish the notices of special tax required by Section 53340.2 of the California Government Code. 3. The appropriate officers and agents of the City are further authorized and directed to adjust the special tax roll before the final posting of the special taxes to the County tax roll each fiscal year, as necessary to achieve a correct match of the special tax levy with the county assessor's parcel numbers finally used by the County in sending out property tax bills. 4. lf a courl of competent jurisdiction finds any part of this Ordinance to be invalid or the special tax to be inapplicable to or unreasonable for any particular parcel, the balance of this Ordinance and the application of the special tax to the remaining parcels, shall not be affected and shall remain in full force and effect. S, This Ordinance shall take effect and be in force immediately upon the date of final passage, as a tax measure, pursuant to City Charter, Article Vl, Section 610. 2ot3 ************** srATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. crTY oF FRESNO ) l, YVONNE SPENCE, City Clerk of the City of Fresno, ceftify that the foregoing ordinance was adopted by the Council of the City of Fresno, at a regular meeting held on the daY of AYES : NOES : ABSENT : ABSTAIN : 2014. Mayor Approval:,2014 ,2014 ,2014 ,2014 Mayor Approval/No Return: Mayor Veto: Council Override Vote: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE BY: YVONNE SPENCE, CMC City Clerk BY: Deputy Raj Singh Badhesha, DePuty 3of3 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-570 Agenda Date:11/20/2014 Agenda #: REPORT TO THE CITY COUNCIL November 20, 2014 FROM:BRUCE RUDD, City Manager BY:WILMA QUAN-SCHECTER, Deputy City Manager SUBJECT PUBLIC MEETING concerning the renewal of the Fresno-Clovis Tourism Business Improvement District EXECUTIVE SUMMARY On October 30,2014,the City Council approved a Resolution of Intent to Renew the Fresno-Clovis Tourism Business Improvement District (FCTBID).To renew a property-based improvement district, the enabling legislation,Property and Business Improvement District Law of 1994,Streets and Highways Code section 36600 et seq.requires the public body hold a public meeting wherein comments on the renewal of the District may be heard.There is no action requested of the City Council on this item. BACKGROUND The Fresno-Clovis Tourism Business Improvement District (FCTBID)was formed in 2010 for a five- year term ending on December 31,2015.As the FCTBID reaches the end of its initial term, businesses have expressed a desire to renew it.On October 30,2014,the Fresno City Council approved the Resolution of Intent to Renew the FCTBID and a Resolution Requesting Consent of the City of Clovis to Renew the District. On November 17,2014,the City of Clovis City Council will consider the Resolution Requesting Consent to Renew the District. The Property and Business Improvement District Law of 1994 requires that the municipal body renewing the District hold a public meeting after the Resolution of Intent is approved,and prior to the approval of a Resolution of Formation.Notice of the public meeting was sent to all hoteliers in the cities of Fresno and Clovis on October 31,2014.There is no Council action requested on this item. All written and verbal comments provided on November 20,2014,at the public meeting will be City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-570 Agenda Date:11/20/2014 Agenda #: All written and verbal comments provided on November 20,2014,at the public meeting will be collected.A final Resolution of Formation will be brought before City Council on December 18,2014, for approval. ENVIRONMENTAL FINDINGS N/A LOCAL PREFERENCE N/A FISCAL IMPACT There is no fiscal impact to the City.All necessary actions to notice the public hearing will be paid by the CVB.If the FCTBID is renewed,the City will be responsible for collecting the assessment from hoteliers and will pass the funds through to the FCTBID.The City will be reimbursed for administrative costs of collecting the assessment and transmitting it to the FCTBID. City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-590 Agenda Date:11/20/2014 Agenda #: REPORT TO THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO AND THE FRESNO REVITALIZATION CORPORATION DATE:November 20, 2014 FROM:MARLENE MURPHEY, Executive Director BY:ENRIQUE MENDEZ, Project Manager SUBJECT Successor Agency to the Redevelopment Agency consider adopting and approving: 1.Adopt finding of Categorical Exemption pursuant to Section 15301/Class 1 of the CEQA Guidelines (no change in existing use) (Successor Agency Action) 2.Approve Purchase and Sale Agreement between the Successor Agency to the Redevelopment Agency of the City of Fresno and Mathews Harley-Davidson, Inc. for the Sale of Certain Former Redevelopment Agency Parcels located at the northwest corner of Abby and Belmont Avenues (APNs 452-301-25T, -26T, -27T & -30T) within the City of Fresno (Successor Agency Action) EXECUTIVE SUMMARY The Agency staff recommends approval of a purchase and sale agreement with Mathews Harley- Davidson for the sale of four (4)parcels totaling approximately 0.64 acres at the northwest corner of Abby and Belmont Avenues south of White Avenue and east of Blackstone Avenue (APNs 452-301- 25T, -26T, -27T & -30T). BACKGROUND The Successor Agency issued a Request For Proposals to buy Agency-owned parcels apns 452-301- 25T,-26T,-27T &-30T.These four adjoining parcels are vacant except for a 25’billboard located on the southern portion of the site.Prior to the RFP deadline,the Agency received one (1)proposal to purchase from Mathews Harley-Davidson, Inc. Mathews Harley-Davidson dates back to 1953 when Harold &Eva Mathews bought their Harley Davidson dealership and later established their Blackstone Avenue location in 1961.The company recently completed a multi-million dollar expansion of their showroom and service facilities.Mathews has proposed to improve the subject property with new lighting,landscaping and parking facilities to City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-590 Agenda Date:11/20/2014 Agenda #: support their recent expansion as well as a proposed future building. A third party certified MAI appraiser valued the Agency’s property at $174,000 per appraisal dated June 18th,2014.Mathews has offered to pay the full appraised value.The Agency will incur its legal fees,and the customary closing costs and escrow fees.The Purchase and Sale Agreement (PSA)is subject to California Health and Safety Code section(s)relating to redevelopment and property disposition. ENVIRONMENTAL FINDING The Project has been environmentally assessed and has been determined to be eligible for a Categorical Exemption under Section 15301 Class 1 of the California Environmental Quality Act (CEQA)because there will be no change in the existing use of the property.Further,none of the exceptions to categorical exemptions set forth in CEQA Guidelines section 15300.2 apply to this project. Attachments: Area Map Purchase and Sales Agreement City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-592 Agenda Date:11/20/2014 Agenda #: REPORT TO THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO AND THE FRESNO REVITALIZATION CORPORATION DATE:November 20, 2014 FROM:MARLENE MURPHEY, Executive Director SUBJECT Approve First Amendment to Agreement for Disposal and Sale of Property to Moose Family Center #445 at 5025 E. Dakota (APN 493-020-29ST) (Successor Agency action) RECOMMENDATION The Agency recommends approval of the First Amendment to Agreement for Disposal and Sale of Property and Escrow instructions for 5025 E.Dakota Avenue (APN 493-020-29ST)for the purchase price of $281,000. EXECUTIVE SUMMARY On March 2, 2014 the Successor Agency approved the sale of 5025 E. Dakota to the Fresno Moose Family Center #445 (MFC) for $265,000 subject to the HSC 34177. The Oversight Board denied the sale and directed staff to offer the property at its appraised value of $281,000. The MFC has agreed to purchase the property for the full appraised value of $281,000 and has executed the subject Amendment (attached). BACKGROUND In accordance with AB26 and AB1484 the Successor Agency is disposing of its property. A third party MAI appraiser valued the property located at 5025 E. Dakota (APN 493-020-29ST) at $281,000. The parcel has been the headquarters for the Fresno Moose Family Center #445 (MFC) since 2006. In response to a Request for Proposal to Purchase, (RFP) the MFC offered $265,000 for the property explaining that the difference between the appraised value and their offer was consideration for improvements made by the MFC during their occupancy over the prior eight years. The Successor Agency accepted the offer and approved sale of the property. On September 4, 2014 the Oversight Board considered the matter and denied the sale at less than the appraised value and directed staff to offer the property to the MFC for its full appraised value of $281,000. The MFC has agreed to pay the full appraised value and has executed an Amendment to the Agreement for Disposal and Sale of City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-592 Agenda Date:11/20/2014 Agenda #: Property. The MFC has agreed to pay the full appraised value and has executed the attached Amendment Environmental Finding The Project has been environmentally assessed and has been determined to be eligible for a Categorical Exemption under Section 15301 Class 1 of the California Environmental Quality Act (CEQA)because there will be no change in the existing use of the property.Further,none of the exceptions to categorical exemptions set forth in CEQA Guidelines section 15300.2 apply to this project. Attachment: 1.Area Map 2.First Amendment to Agreement for Disposal and Sale of Property and Escrow Instructions City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-593 Agenda Date:11/20/2014 Agenda #: REPORT TO THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO AND THE FRESNO REVITALIZATION CORPORATION DATE:November 20, 2014 FROM:MARLENE MURPHEY, Executive Director SUBJECT Actions pertaining to Owner Participation Agreement: 1.Invoke Exception to Better Business Act (Requires 5 affirmative votes) 2.Approve Restated and Amended Owner Participation Agreement (OPA) between the Housing Successor of the City of Fresno and Apec LLC International for the rehabilitation of 1241 Broadway Plaza (APN 466-214-01) (City action) RECOMMENDATION The City of Fresno as Housing Successor recommends approval of the Amended Restated Owner Participation Agreement for 1241 Broadway Plaza. EXECUTIVE SUMMARY The Housing Successor has an Owner Participation Agreement with Hotel Frezno LLC to rehabilitate the former Hotel Fresno into a mixed use housing and commercial development. The OPA commits $1,900,000 of low and moderate income assistance to help create affordable housing units. Apec is purchasing the property and seeks to amend the agreement that is being assigned by the owner subject to Agency approval. The amended OPA, if approved, will be the basis of a loan commitment letter utilized by Apec to pursue its financing plan. BACKGROUND The Housing Successor has an Owner Participation Agreement with Hotel Frezno LLC to rehabilitate the former Hotel Fresno into a mixed use housing and commercial development. The OPA commits $1,900,000 of low and moderate income assistance to help create affordable housing units. The Hotel Fresno property at 1241 Broadway Plaza (APN 466-214-01) is in escrow between Apec International LLC and Hotel Frezno LLC. Apec is a multifamily and commercial development City of Fresno Printed on 12/16/2022Page 1 of 3 powered by Legistar™ File #:ID#14-593 Agenda Date:11/20/2014 Agenda #: company with extensive experience in market rate and affordable housing. Apec proposes to rehabilitate the subject property into 70 rental residential units consisting of 30 market rate units and 40 units covenanted for affordable housing across a broad range of income levels. The units will be a mix of one, two and three bedrooms. The ground floor will contain common area space, office space and some retail. In addition, Apec proposes to acquire, at appraised value, an adjacent Agency- owned lot (APN 466-214-17) and a small city remnant piece in order to build structured parking at the rear of the building. (See attached map). The total project costs are estimated at $21,033,102. The financing plan envisions: $3,150,000 million from the Infill Infrastructure Grant Program (Infill Program) administered by the California Housing and Community Development Commission (HCD); $3,532,179 Permanent Conventional Loan; 8,032,891 tax credit equity from the Low Income Housing Tax Credits Program; $3,636,125 from Historic Tax credit equity; $1.9 million committed by the OPA from Housing Successor Low and Moderate Income funds; and, $781,908 in deferred development fees. The Infill Program Grant has been announced with an application deadline of December 10, 2014. It’s estimated that the award will be made in April 2015. The TCAC application round of July 1st 2015 will be pursued with the award estimated to be announced in September 2015. The Historic Tax credits will be pursued subsequent to the TCAC Application. The schedule (based on estimated TCAC and CAHCD application and award dates) is reflected in the attached performance schedule. The OPA is being assigned to APEC by Frezno Hotel concurrent with the closing of escrow and subject to Agency approval. The escrow is conditioned upon funding commitment of the OPA as revised in the amended restated OPA. In order to pursue the financing plan and submit its application to HCD by December 10th 2014, APEC is seeking an amended OPA with the Housing Successor. The terms of the draft Restated and Amended OPA (attached) are summarized as follows: a.Principal Amount:the principal amount of the Loan will be one million nine hundred Thousand Dollars ($1,900,000) b.Terms of the Loan: The loan will mature fifty five years after the deed of trust is recorded. c.Interest Rate: The loan will bear one-percent (1%) simple interest. d.Repayment:The first annual payment date shall be May 15th of the year that is one year after the certificate of completion.The Annual Payment Date shall be May 15th of each year based upon residual receipts.At loan maturity,the entire outstanding principal and accrued interest and other amounts due to the lender under the OPA documents shall be due and payable. e.Termination of the loan commitment:The lender reserves the right to cancel the commitment and terminate the Lender’s obligation upon the occurrence of any of the following: The borrower's failure or inability to comply with the terms or conditions of this loan commitment. City of Fresno Printed on 12/16/2022Page 2 of 3 powered by Legistar™ File #:ID#14-593 Agenda Date:11/20/2014 Agenda #: The filing by or against the Borrower of a petition in bankruptcy or insolvency or for reorganizations or the appointment of a receiver or trustee, or the making by the Borrower or any guarantor of an assignment for the benefit of creditors, or the filing of a petition for arrangement by the Borrower or any guarantor. If Borrower fails to obtain an Infill Program commitment and fails to obtain an MHP Program commitment. However, if Borrower is successful in obtaining either an Infill Program commitment or an MHP Program commitment, then Lender cannot terminate the Commitment pursuant to this Section 29(c). Environmental Finding A finding of categorical exemption was made pursuant to section 15331 class 31 of CEQA guidelines for the rehabilitation of APN 466-214-01. Attachments: 1.Map 2.Draft Amended Owner Participation Agreement City of Fresno Printed on 12/16/2022Page 3 of 3 powered by Legistar™ FRESNO/MERCED ALYFRONTAGE RDH STFRESNO STBROADW AY PLZ-ALYHotel Fresno Project - Aerial Map466-214-17THotel FresnoCity Remnant R ICIIVf D ir:ll liÛ',j 13 Pn ? 16 Agenda ltem: lD#14-593 Date: LLl2OlL4 C1TY CLERK, FRESHO CA FRESNO CITY COUNCIL City of FRESr€*i3 Supplemental lnformation Packet Agenda Related ltems - lD#14-593 Supplemental Packet Date: November 2O,2OL4 Item(sl Actions pertaining to Owner Participation Agreement: 1. Invoke Exception to Better Business Act (Requires 5 affirmative votes) 2. Approve Restated and Amended Owner Participation Agreement (OPA) between the Housing Successor of the City of Fresno and Apec LLC lnternational for the rehabilitation of 1241 Broadway Plaza (APN 466-214-01) (City action) Supplemental Information: Any agenda related public documents received and distributed to a majority of the City Council after the Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600 Fresno Street, during normal business hours (main location pursuant to the Brown Act, G.C. 54957.5(21. ln addition, Supplemental Packets are available for public review at the City Council meeting in the City Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City Clerk's website. Americans with Disabilities Act (ADA| : The meeting room is accessible to the physically disabled, and the services of a translator can be made available. Requests for additional accommodations for the disabled, sign language interpreters, assistive listening devices, or translators should be made one week prior to the meeting. Please call City Clerk's Office at 621-7650. Please keep the doorways, aisles and wheelchair seating areas open and accessible. lf vou need assistance with seat¡ng because of a disabil , please see F,:CTIVED RECORDED AT THE REQUEST OF AND WHEN RECoRDED RETURN :t1l ¡rúU 19 pn ? 07TO: T!iY CLERK, FRTSNO CA City of Fresno, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno 2344 Tulare St., Suite 200 Fresno, Ca.93721 Attention: City Manager (SPACEABOVE TH|S L|NE FOR RECORDER',S USE) This Agreement is recorded at the request and for the benefit of the Redevelopment Agency of the City of Fresno and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. CITY OF FRESNO, IN ITS CAPACITY AS HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO By: Bruce Rudd, City Manager Dated: Marlene Murphey Executive Director Dated: AMENDED AND RESTATED OWNER PARTICIPATION AGREEMENT by and between The City of Fresno, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno, a municipal corporation and APEC INTERNATIONAL, LLC By: 1241 -1263 Broadway Plaza Hotel Fresno Housing Project Fresno, CA 93721 ATTACHMENTS 1. Exhibit A: Legal Description of Property 2. Exhibit B: Schedule of Performance/Payment Schedule 3. Exhibit C: BudgeUFinancialPlan 4. Exhibit D: Ceñificate of Completion 5. Exhibit E: Scope of Development and Project Design 6. Exhibit F: Form of Regulatory Agreement and Declaration of Covenants and Restrictions 7. Exhibit G: Form of Promissory Note 8. Exhibit H: Form of Deed of Trust 2 AMENDED AND RESTATED OWNER PARTICIPATION AGREEMENT THIS AMENDED AND RESTATED OWNER PARTICIPATION AGREEMENT ("Agreement") is entered as of the Effective Date (defined in this Agreement), bEtweEn the CITY OF FRESNO, IN ITS CAPACITY AS HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a municipal corporation, ("Agency") and APEC INTERNATIONAL LLC, a California limited liability company ("Owner"). RECITALS The parties enter this Agreement based on the following facts, understandings, and intentions: A. Agency entered into an Owner Participation Agreement with Hotel Frezno, LLC. ("Assignor"), with regard to the Property dated March 9,2011 (the "Original OPA"). B. Assignor assigned all rights and obligations under the Original OPA to Owner by an Assignment dated November 4,,2014. C. By authority granted under California Redevelopment Law (the "Law"), the former Redevelopment Agency has prepared and was responsible for carrying out the redevelopment plan for the Central Business District Redevelopment Area (the "Plan"). D. To the extent provided in or allowed by the Law including Cal. H.&S.C. Sections 33334.2 and 33449, as provided by joint resolutions of the Fresno City Council and the Agency, findings and determinations pursuant to Health and Safety Code Section 3333a.2.(g), the Plan and limited to the terms and conditions therein, the Agency may make improvements upon and/or construct and improve structures in order to provide housing for persons and families of low or moderate income, including related on-site and off-site improvements, by variously: (1) allowing the use of Housing Set Aside Funds outside the Airport Area Revitalization, Central Business District, Central City Commercial Revitalization, Chinatown Expanded, Convention Center, Freeway 99- Golden State Corridor, FruiUChurch, Mariposa, Roeding Business Park, South Fresno Industrial Revitalizatíon, South Van Ness lndustrial, Southeast Fresno Revitalization, West Fresno l, West Fresno ll, West Fresno lll, redevelopment plans; (2) restricting the use of the Housing Set Aside Funds to certain of the Community Development Block Grant eligible areas of the City; (3) placing a priority on the use of the Housing Set Aside Funds from certain Project Areas to be used either within or adjacent to the CentralArea or adjacent to certain Project Areas. E. On February 1, 2014, the former Redevelopment Agency was dissolved pursuant to the provisions of California State Assembly Bill No. 1X 26 ("AB 26") and upheld by the California Supreme Court in California Redevelopment Assoc. v. Matosantos, 5194861 (Dec. 29,2011). On June 27,2012, AB 26 was subsequently 3 amended in part by California State Assembly Bill No. 1484 ("AB 1484") (AB 26 and AB 1484 are referred to collectively as the "Redevelopment Dissolution Law"). F. Pursuant to the Redevelopment Dissolution Law, the former Redevelopment Agency's housing assets were transferred to the City of Fresno as the Housing Successor to the former Redevelopment Agency. Agency, as the Housing Successor, assumed the rights and obligations under the Original OPA. G. Agency administers the Low and Moderate lncome Housing Fund established pursuant to Cal. H.&S. C. Sections 33334.2 et seq. H. The Agency shall permit owner participation in the redevelopment of property in the Plan area in conformity with the Plan and all owner participation rules and criteria, to the extent provided by Cal. H.&S.C. Sections 33339, 33339.5, 33380 and 33381. l. Owner holds, or will acquire, all rights, title and interest in fee to the certain real property described in Exhibit rrArr attached hereto and incorporated herein (the "Property"), including improvements located thereon which shall be improved by Owner as contemplated by this Agreement and known as 1241-1263 Broadway Plaza, Fresno, California (the "Project"). The Property and Project are located within the territorial jurisdiction of the Agency. J. Owner proposes to develop a new mixed use residential rental project on the Property consisting of seventy-nine (79) residential units. At least nineteen (19) but no greater that forty (40) of the residential units (the "Affordable Units") are to be rented and preserved as "Affordable Rental Housing" (as defined below). K. Owner agrees to undertake improvements in accordance with the combined Performance and Payment Schedule described in Exhibit "8" attached hereto and incorporated herein (the "Performance and Payment Schedule"). L. To the extent Housing Set Aside Funds will exceed 50 percent of the cost of producing the Affordable Units, the Agency has determined based on substantial evidence, that the use of the Housing Set Aside Funds is necessary because the Agency or Owner of the Affordable Units has made a good faith attempt but been unable to obtain commercial or private means of financing the units at the same level of affordability and quantity. The Project is not feasible and cannot be completed and restricted to the affordable rental housing purposes and uses provided under Law and this Agreement absent the financial support of the Agency. M. The Property and associated onsite and offsite improvements are collectively referred to in this Agreement as the "lmprovements" or the "Project," all of which will directly benefit the Property and the Plan area, cannot othenruise be reasonably paid for or financed solely through private financing, and are necessary to eliminate blight. 4 N. Agency is willing to assist Owner's construction of the Affordable Units by making available to Owner as a loan certain Housing Set Aside (Tax lncrement) Funds in the amount of $1,900,000 (the "Loan") as described in Section 1.25, upon the terms and conditions specified in this Agreement. O. The Loan shall be disbursed in accordance with the schedule set out in Exhibit "8" to the Agreement and the Loan shall be repaid in accordance with the Promissory Note, an example of which is attached hereto as Exhibit "G". The Loan and performance of the affordability and other covenants and restrictions set forth in this Agreement shall be evidenced by this Agreement, the Regulatory Agreement and Declaration of Covenants and Restrictions, attached hereto as Exhibit "F", and the Deed of Trust and Assignment of Rents, attached hereto as Exhibit "H," which shall be recorded against and run with and encumber the Property. P. Agency has further determined this Project is in the best interests of, and will materially contribute to, Plan implementation. Further, Agency has found the Project: (i) will have a positive influence in the Plan Area, and surrounding environs; (ii) is in the vital and best interests of Agency and the health, safety, and welfare of City residents; (iii) complies with applicable federal, state, and local laws and requirements; (iv) will help eliminate blight; (v) will improve and preserve the community's supply of low income housing available at affordable rent, as defined by Cal. H.&S.C. Sections 50052.5 and 50053, to persons and families of low income, as defined in Cal. H.&S.C. Section 50093 of Code; (vi) will be available to meet the replacement housing provisions in Cal. H.&S.C. Section 33413; (vii) will apply funds solely within the respective Plan areas except to the extent otherwise provided herein and allowed by Law; (viii) all planning and administrative expenses incurred in pursuit hereof are necessary for the production, improvement, or preservation of low income housing; (ix) will comply with all owner participation rules and criteria of Agency and the Plan; and (x) will comply with any and all applicable review and other requirements of the City's Historical Preservation Commission. O. The Owner and the Agency have determined that this Agreement is not subject to Article XXXIV of the California Constitution. AGREEMENT 1. DEFINITIONS. Besides definitions contained elsewhere in this Agreement, the definitions in this Section will govern the construction, meaning, application, and interpretation of the various terms used in this Agreement. 1.1 "ADA" means the Americans with Disabilities Act of 1990. 1.2 "Affordability Period" means a period of fifty-five (55) years commencing from the date Agency records the Certificate of Completion. 1.3 "Affordable Rental Housing" or "Affordable Units" means the Units available at affordable rent, as defined by Cal. H.&S.C. Section 50053 (b) , to persons and families of extremely low (30% of area median income), very low (50% of area median income), lower (80% of area median income) and/or moderate income (120o/o of area median income), as defined in Cal. H.&S.C. Section 50093 of Code and section 5.603, consistent with Recital J above which requirements shall be enforceable by covenants running with the land. As used in this Agreement, the term "Affordable lncome Rent" shall mean annual rentals whose amount does not exceed the maximum percentage of income that can be devoted to rent as set forth by Health & Safety Code Section 50053, or its successor, for extremely low, very low, lower and moderate income households, which is currently thirty percent (30%) of thirty percent (30%) for extremely low, thirty percent (30%) of fifty percent (50%) (for very-low), thirty percent (30%) of sixty percent (60%) (for lower), and thirty percent (30%) of one- hundred ten percent (110%) (for moderate) of the Fresno Metropolitan Statistical Area Median Income adjusted for the family size appropriate for the Unit. There will be no less than nineteen (19) and no more than forty (40) Affordable Units. lf there are forty (40) Affordable Units, no more than six (6) units shall be extremely low income, no more than 23 units shall be very low income, and the balance of eleven (11) or more units shall be lower or moderate income. lf there are fewer than forty (40) Affordable Units, the proportionate number of extremely low and very low units shall not be greater than as set forth above. For example, if there are twenty (20) Affordable Units, no more than three (3) units may be extremely low income. Nothing contained herein shall prevent Owner from setting all Affordable Units at the moderate income level. "Agency" means the City of Fresno in its capacity as the Housing Successor to the Redevelopment Agency of the City of Fresno, a municipal corporation, organized and existing under the Law, and any assignee of or successor to its rights, powers, and responsibilities. "Agreement" means this Owner Participation Agreement. "Budget" means the BudgeUFinancial Plan for the Project attached hereto and incorporated herein as Exhibit "C" (the "Budget"). "Certificate of Completion" means that Certificate issued in the form attached as Exhibit "D" to Owner by Agency evidencing completion of the Project for purposes of this Agreement. "City" shall mean the City of Fresno, California, a municipal corporation. "Conditions Precedent of Agency" means the conditions precedent to the effectiveness of this Agreement against the Agency. 1.4 1.5 1.6 1.7 1.8 1.9 6 1.10 "Construction Completion Date" means the date specified in Exhibit B, subject to extension pursuant to Section 4.5. 1.11 "Day" whether or not capitalized, means a calendar day, unless stated othenruise. 1.12 "Deed of Trust" shall mean the Deed of Trust recorded against the Property securing the Loan, as shown in Exhibit "H" of this Agreement. 1.13 "Default" means a party's failure to timely perform any action or covenant required by this Agreement following notice and opportunity to cure. 1.14 "Director" means the Executive Director of Agency. 1.15 "Entitlements" mean all permits and fees that the City, County of Fresno, and other governmental agencies with jurisdiction over the Project, the lmprovements, or the Property may require. 1.16 "Effective Date" means the date of complete execution of the Agreement following Agency Board approval thereof. 1.17 "Environmental Laws" means any federal, state, or local law, statute, ordinance, or regulation pertaining to environmental regulation, contamination, or cleanup of any Hazardous Materials or waste including, without limitation, any state or federal lien or "super lien" law, any environmental cleanup statute or regulation, or any governmentally required permit, approval, authorization, license, variance or permission. 1.18 "Funding Source" means the Loan and other funding sources secured by Owner to construct the lmprovements. 1.19 "Financing Plan" means the Budget including sources and uses of funds sufficient for Owner to complete the lmprovements according to the Performance and Payment Schedule. 1.2O "Hazardous Materials" means any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government including, without limitation, any material or substance which is: (a) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Sections 25115,25117, or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, (b) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, (c) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and 7 Safety Code, (d) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, (e) petroleum, (f) friable asbestos, (g) polychlorinated byphenyls, (h) listed under Article 9 or defined as "hazardous" or "extremely hazardous" under Article 11 of Title 22, California Administrative Code, (l) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. 51317), [) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act (42 U.S.C. 56901 et seq., or (k) defined as "hazardous substances" pursuant to Section of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 59601, et seq.); provided, however, hazardous materials shall not include: (1) construction materials, gardening materials, household products, office supply products or janitorial supply products customarily used in the construction, maintenance, rehabilitation, or management of residential rental housing or associated buildings and grounds, or typically used in household activities, in a manner typical of other residential rental housing developments which are comparable to the lmprovements; and (2) certain substances which may contain chemicals listed by the State of California pursuant to Health and Safety Code Sections 25249.8 et seq., which substances are commonly used by a significant portion of the population living within the region of the Property, including, but not limited to, alcoholic beverages aspirin, tobacco products, NutraSweet and saccharine. 1.21 "Household" means one or more persons occupying an Affordable Unit. 1.22 "Housing Set-Aside Funds" means those California Health and Safety Code Section 33334.2 monies held and administered by Agency a portion of which shall be made available as the Loan to Owner for eligible costs and expenses incurred by Owner in constructing the lmprovements in such amounts, and upon such terms and conditions specified in this Agreement. 1.23 "lmprovements" mean the construction of the Affordable Units and other units that Owner will complete on the Property as part of the Project, including associated fencing, and landscaping improvements. 1.24 "Law" means the Community Redevelopment Law of the State (California Health and Safety Code Sections 33000 et seq.) as modified by the Redevelopment Dissolution Law. 1.25 "Loan" means the principal sum of $1,900,000 provided by Agency to Owner as a loan, upon the terms and conditions set forth in this Agreement and the Promissory Note attached hereto as Exhib¡t "G" to be secured by a no worse than third position deed of trust lien against the Property, subject to Owner's permanent financing in first position, and lnfill I Grant or MHP Loan in second position. lf the deed of trust securing the Promissory Note is recorded prior to the recordation of the deed or deeds of trust securing the other Funding Sources consistent with the Financing Plan, the Agency shall subordinate such deed of trust to such other deed(s) of trust, provided the Agency's Deed of Trust maintains no worse than 3rd position. 1.26 "Loan Documents" are collectively this Agreement and all exhibits and attachments thereto any deed of trust given as securitv, âs they may be amended, modified or restated from time to time. 1.27 "Material Change" means a change, modification, revision or alteration to the Loan Documents that significantly deviates from those previously approved by the Agency, provided that fully funded change(s) which do not result in a change in the number or type (i.e. residential, affordable) of Units and/or an increase in the total Loan funding provided in this Agreement shall not constitute Material Change(s). 1.28 "Owner" means APEC lnternational, LLC, or an affiliated company in which it is a member, managing member, general partner, or principal. 1.29 "Plan" means the Redevelopment Plan for the Fulton Redevelopment Project Area. 1.30 "Project" means the development of seventy nine (79) residential Units on the Property, of which no less than nineteen (19) and no more than forty (40) Units shall be Affordable Units. 1.31 "Project Area" means the Fulton Redevelopment Project Area. 1.32 "Project Completion Date" means the date that Agency shall have determined the Project has reached completion in accordance with the plans and specifications in the Performance and Payment Schedule, as evidenced by Agency's issuance of a Certificate of Completion. 1.33 "Property" means the real property described in Exhibit "4," attached hereto. 1.34 "Release of Restrictions" means a release of those covenants, conditions, and restrictions contained in this Agreement. 1.35 "Restrictions" means the affordability restrictions contained in this Agreement and Exhibit F thereto, containing all conditions, covenants, and restrictions required by the Law, any other applicable laws and regulations, the Plan, and this Agreement, running with the Property and I 2. the Affordable Units thereon and burdening such for the Affordability Period. 1.36 "Performance and Payment Schedule" means the schedule attached as Exhibit "8," setting forth the dates and times by which the parties must accomplish certain obligations under this Agreement. The parties may revise the Performance and Payment Schedule from time to time on mutual written agreement of Owner and Agency, but any delay or extension of the Construction Completion Date is subject to the requirements in this Agreement. 1.37 "Security Financing lnterest" means a security interest which Owner grants in the Property and the lmprovements thereon before the Agency issues and records a Release of Restrictions. 1.38 "Unit" mean a residential unit constituting the Project. 1.39 "Urban Core" shall mean the area within the Agency's Merged Project Area No. 1 boundaries, including any of the following project areas: Central Business District, Chinatown Expanded, Convention Center, Fulton, Jefferson, Mariposa, South Van Ness lndustrial, West Fresno l, or West Fresno ll; and, the residential portion of the Freeway-99 Golden State Corridor Redevelopment Project Area. CONDITIONS PRECEDENT TO AGENCY'S OBLIGATION TO PERFORM UNDER THIS AGREEMENT. The following are conditions precedent to Agency's obligation to perform under this Agreement. Until each and all of the conditions are satisfied, Agency is not obligated to take any action, or provide any funding, or further funding, under this Agreement. Agency, in writing by its authorized representative, may waive any condition or agree to extend the time for satisfaction of any condition set forth in this Section 2. Agency may terminate this Agreement as provided herein for the failure of a condition. 2.1 Owner shall pay for and provide a title report, recorded deed, or other evidence acceptable to Agency that Owner owns the Property. 2.2 Owner has entered into, and provided Agency copies of agreements with any and all Funding Sources and the general contractor for the Project. All such Funding Source agreements shall contain a provision whereby the party(ies) to each such agreement, other than Owner, agree to make reasonable efforts to (i) notify Agency immediately of any event of default by Owner under such agreement; (ii) notify Agency immediately of termination or cancellation of such agreement; and (iii) provide Agency, upon Agency's request, an estoppel certificate 10 certifying that such agreement is in full force and effect and Owner is not in default under such agreement. 2.3 Owner has submitted evidence that the combined monies from the Funding Sources, are not less than the greater of a total development cost of $21,060,342 or the amount which Agency determines is necessary to complete the lmprovements, including evidence of such Funding Sources acceptable to the Agency. Owner intends to apply for one or more of the following sources: (A) the lnfill lnfrastructure Grant Program ("lnfill Grant") administered by the California Housing and Community Development Commission ('HCD') in the FY14-15 funding cycle with an application date of December 10, 2014; (B) the Multi-Family Housing Program ("MHP Loan") administered by HCD in the first round for the next available funding cycle in 2015; and (C) the Low lncome Housing Tax Credit program administered by California Tax Credit Allocation Committee. lf Owner fails to obtain both an lnfill Grant and the MHP Grant within the timeframes set forth above, Agency reserves the right to cancel its obligations hereunder, including the Loan described in Section 1.25. However, if Owner is successful in obtaining either an lnfill Grant or an MHP Grant as described above, Agency shall not terminate its obligations pursuant to this Section 2.3, but may terminate the agreement as otherwise provided herein. Notwithstanding the foregoing, Agency's obligation to provide the Loan shall expire one year following the Effective Date, unless the Owner has obtained commitment for all Funding Sources by that date. lf Agency determines that the funds described above are not sufficient to complete the Project, Owner may satisfy this condition as agreed to by Owner and Agency in writing. 2.4 Owner will submit its Financing Plan to the Agency for review and 2.5 acceptance provided that the purpose of Agency's review is solely to confirm Owner has sufficient funds available to complete the lmprovements and maintain the Project as this Agreement requires. After Agency accepts the Financing Plan, Owner will not make any Material Change in the Financing Plan without first submitting such change to Agency for review and acceptance, which shall not be unreasonably withheld, delayed, or conditioned. Owner will submit financial information, as appropriate, to demonstrate sufficient financial capacity to carry out the Project. Owner, at Owner's expense, shall have investigated and determined all environmental, soil, seismic, and other surface and subsurface conditions 2.6 11 of the Property and the suitability of such conditions for the Project. Owner's responsibility and due diligence includes, but is not limited to, determining the presence of Hazardous Materials. Both Owner and Agency will promptly give the other copies of all reports and test results. Owner will indemnify, defend, and hold Agency harmless from any damages or claims arising out of Owner's inspections and tests. 2.7 Should Owner's property assessmenUinspection reveal any Hazardous Materials or environmental conditions requiring remediation, Owner will promptly notify Agency. Not later than ten (10) days from and after such notice, Owner shall, at its sole cost and expense, commence to make required submittals, develop required remedial action plans, and thereafter pursue remediation activities as to such Hazardous Materials or environmental conditions and to diligently prosecute such to completion as required by applicable federal, state and local law and in a manner and according a reasonable time frame agreeable to Agency. Without limiting the foregoing, any remediation will be performed pursuant to a remedial action plan, if needed, approved by the governmental agencies having jurisdiction and will be performed according to applicable environmental laws and governmental requirements. 2.8 Owner shall not be in default of this Agreement and all representations and warranties of Owner contained herein shall continue to be true and correct in all material respects. 2.9 Owner will have signed and delivered all documents required hereunder. 2.1O Owner will have received all land use and development approvals, variances, permits and the like, if any, required by this Agreement. 2.11 Owner shall be in full compliance with the Performance and Payment Schedule. 2.12 Owner will have provided proof of insurance as required by this Agreement. 213 This Agreement, the executed Deed of Trust, and the executed Restrictions shall have been recorded with the Fresno County Recorder's Office. 3. OWNER OBLIGATIONS AFTER SATISFACTION OF CONDITIONS PRECEDENT. The following obligations of Owner will run with the land and survive this Agreement, and will become effective upon the date Owner acquires fee title to the Property: 12 3.1 Owner will take all reasonable precautions'to prevent the release into the environment of any Hazardous Materials in, oî, or under the Property in violation of applicable laws or regulations. Owner will comply with all governmental requirements with respect to Hazardous Materials. ln addition, Owner shall install and use equipment and implement and follow proceduresthat are consistent with reasonable standards for the disclosure, storage, use, removal, and disposal of Hazardous Materials. Owner will notify the Agency and give Agency a copy of all environmental permits, disclosures, applications, entitlements or inquiries relating to the Property including, without limitation, notices of violation, notices to comply, citations, inquiries, cleanup or abatement orders, cease and desist orders, reports filed pursuant to self-reporting requirements and reports filed or applications made pursuant to any governmental regulation relating to Hazardous Materials. Within 3 days after each incident, Owner will report to Agency any unusual or potentially important incidents respecting the environmental condition of the Property. lf a release of any Hazardous Materials into the environment occurs, Owner will, as soon as possible after the release, furnish Agency with a copy of any reports relating thereto and copies of all correspondence with governmental agencies relating to the release. Upon request, Owner will furnish Agency with a copy of any other environmental entitlements or inquiries relating to or affecting the Property including, without limitation, all permit applications, permits, and reports, even reports and other matters. Owner shall indemnify, hold harmless and defend Agency, City and each of their officers, officials, employees, agents and volunteers from any and all claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys' fees), arising out of (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about the Property, or the transportation of any Hazardous Materials to or from the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to any use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Property. This indemnity will include, without limitation, any damage, liability, fine, penalty, parallel indemnity after closing, cost or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination leak, spill, release or other 3.2 3.3 13 4. adverse effect on the environment. Owner's obligations under the preceding sentence shall apply regardless of whether Agency, City or any of their officers, officials, employees, agents or volunteers are negligent, but shall not apply to any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense caused solely by the gross negligence, or caused by the willful misconduct, of Agency, City or any of their officers, officials, employees, agents or volunteers. This section shall survive expiration or termination of this Agreement. 3.4 The status and qualifications of Owner are of particular concern to Agency. until the Restrictions expire, no voluntary or involuntary successor-in-interest of Owner will acquire any rights or powers under this Agreement, provided that the parties acknowledge the Owner shall hold the Affordable Units for rental as Affordable Rental Housing as provided in this Agreement. Notwithstanding anything to the contrary herein, Owner shall have the right to transfer ownership of the Property to a related entity having experience in the ownership and operation of Affordable Rental Housing, as reasonably determined by Agency, which approval shall not be unreasonably withheld. DEVELOPMENT OF THE PROPERTY. 4.1 Except as set forth in this Agreement, before Owner begins constructing the lmprovements or undertakes any other work of improvement on the Property, Owner, at its own cost and expense, will secure all land use and other entitlements, permits, and approvals that Agency or any other governmental agency with jurisdiction over the Project requires for construction of the Project. Without waiver or limitation, Owner will secure and pay all costs, charges and fees associated with, the following: 4.1.1 All permits and fees that the City, County of Fresno, and other governmental agencies with jurisdiction over the Project, the lmprovements, or the Property may require. 4.1.2 ADA/Barriers to the Disabled. The Project shall comply with all applicable federal, state, and local accessibility requirements. 4.2 Scope of Development and Project Design. Owner has submitted a general or basic concept drawing to Agency, which Agency has approved, and a copy of which is attached as Exhibit "E" (the "Scope of Development and Project Design"). Owner will complete the lmprovements on the Property in one phase, according to the Scope of Development and Project Design, and the plans, drawings, and documents that Owner submits to Agency. Owner shall calry out 14 4.3 construct¡on of the Project including the lmprovements in accordance with all applicable local, state and federal laws, codes, ordinances and regulations, including without limitation all applicable state and federal labor standards. Books and Records. Owner shall make available for examination at reasonable intervals and during normal business hours, all books, accounts, reports, files and other papers or property with respect to all matters covered by this Agreement, and shall permit Agency to audit, examine, and make excerpts or transcripts from such records. Agency may audit any conditions relating to this Agreement at Agency's expense, unless such audit shows a materially significant discrepancy in information reported by Owner to Agency in which case Owner shall bear the cost of such audit. Owner shall also reasonably cooperate with and assist the Agency in Agency's compliance with any applicable audit requirements of the California Redevelopment Law including California Health and Safety Code Sections 33080 and 33080.1. This section shall survive for a period of four years after the expiration or termination of this Agreement. Audit. Owner shall be accountable to Agency for all Loan funds disbursed to Owner pursuant to this Agreement. Owner will cooperate fully with Agency and the State of California in connection with any interim or final audit relating to the Project that may be performed. Owner will maintain accurate and current books and records for the Project using generally accepted accounting principles. Owner agrees to maintain books and records that accurately and fully show the date, amount, purpose and payee of all expenditures financed with Loan funds and to keep all invoices, receipts and other documents related to expenditures financed with Loan funds for not less than four (4) years after the fiscal year in which such expenditures are incurred. For purposes of this section, "books, records, and documents" include, without limitation, plans, drawings, specifications, ledgers, journals, statements, contracts/agreements, funding information, purchase orders, invoices, loan documents, computer printouts, correspondence, memoranda and electronically stored versions of the foregoing. This section shall survive for a period of four years after the expiration or termination of this Agreement. Owner shall cause the issuance of all necessary discretionary governmental permits, approvals and entitlements, close any implicated funding or other escrow and begin/complete construction of the lmprovements according to the Performance and Payment Schedule. 4.5.1 Construction Completion Date. Agency, acting through and in the discretion of its Director, may extend the Construction Completion Date of the Project for that period of time that Agency, in its reasonable discretion, 4.4 4.5 15 4.6 4.7 determines necessary to overcome any delay if and to the extent such delay is due to a cause which is beyond Owner's reasonable control, and if Owner could not, with reasonable diligence, have foreseen and avoided such cause for delay. Such causes include, without limitation, acts of God, unusually severe weather or flood, war, terrorism, riot or act of the public enemy, labor disputes, unavoidable inability to secure labor, materials, supplies, tools or transportation, or acts or omissions of any governmental authority having jurisdiction. Agency will not extend the Construction Completion Date for acts or omissions occurring through the fault of Owner, or for acts of Agency permitted or contemplated by this Agreement. An extension of time as provided in this subsection will be Owner's sole remedy for any delays in the Performance and Payment Schedule. As a condition precedent to any extension requested by Owner, Owner will give the Agency notice within ten (10) days after any cause for delay occurs, stating the cause and the additional time Owner anticipates needed to complete the Project. Any extension by Agency must be in writing and signed by the Director or the Director's designee, which approval shall not be unreasonably withheld, delayed, or conditioned. Subject to the terms of this Agreement, the Loan shall be disbursed to Owner according to the Performance and Payment Schedule. All Loan funds shall be used solely for costs of the Project and lmprovements. ln the event Owner does not complete construction of the Project by the Construction Completion Date, as may be extended pursuant to Section 4.5.1, or otherwise does not go forward with the Project, any portion of the Loan advanced to the Owner shall be immediately due and payable upon the written demand of Agency. Certificate of Completion. Owner will notify Agency when Owner deems the Project complete. Within ten (10) business days after such notice, Agency will inspect the lmprovements. When Agency reasonably determines Owner has completed the lmprovements as required in this Agreement, the Plan, and the Law, Agency will furnish Owner with the Certificate of Completion. Agency will not unreasonably delay, condition or refuse to issue the Certificate of Completion. The recorded Certificate of Completion will be a conclusive determination that Owner has satisfactorily completed the lmprovements required under this Agreement. Any parties then owning or subsequently purchasing, leasing or otherwise acquiring any interest in the Property will not (because of that ownership, purchase, lease or acquisition) after the recording, incur any obligation or liability under this Agreement for constructing the lmprovements, but will take such interest in the Property subject to the continuing covenants set forth in this Agreement. 16 4.7.1 lf Agency determines not to furnish the Certificate of Completion, in accordance with Section 4.7 above, Agency will give Owner a written notice stating why Agency has decided not to issue the Certificate of Completion, or why it is delaying the issuance, and the reasonable actions that, in Agency's opinion, Owner must take before Agency can issue the Certificate of Completion. Agency's failure to give the notice within ten (10) days, however, will not cause the Owner to be entitled to the Certificate of Completion. The Certificate of Completion is not a notice of completion as referred to in Section 3093 of the California Civil Code. 4.7.2 The following are conditions precedent to Agency issuing the Certificate of Completion, and each submission will be in form and substance satisfactory to the Director: Evidence that the time to file all mechanics' liens or material men's liens has expired and any such liens recorded against the Property or lmprovements have been released or, if not released, sufficiently bonded (i.e. 150%) against as required by law. 4.8 To the extent economically feasible, consistent with the requirements of any permitted encumbrance, or as otherwise approved by Agency or provided in the Agreement, if any building or improvement on the Property is damaged or destroyed by an insurable cause, Owner shall, at its cost and expense, diligently undertake to repair or restore said buildings and improvements consistent with the Scope of Development and Project Design for the Project. Such work or repair shall commence within ninety (90) days after the insurance proceeds are made available to Owner and shall be complete within one (1) year thereafter. All insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, Owner shall make up the deficiency. 4.9 lnspections. Owner shall permit, facilitate, and require its contractors to permit and facilitate observation and inspection of the Project by Agency during reasonable business hours and upon reasonable notice for the purpose of determining compliance with this Agreement. 4.10 lf and to the extent that development of the Project results in the permanent or temporary displacement of residential tenants, homeowners or businesses, Owner shall comply with all applicable local, state and federal statutes and regulations with respect to relocation planning, advisory assistance and payment of monetary benefits. Owner shall be solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with said relocation laws. For purposes of this Section 17 4.10 the parties acknowledge that as of the Effective Date the Project Property is vacant and unoccupied. 4.11 Reporting Requirements. Owner shall submit to Agency the following reports: 4.11.1 Annual Reports. Annually, beginning in the year following Agency's issuance of the Certificate of Completion, and continuing until the expiration of this Agreement, on such dates as are agreeable between the parties and consistent with all federal and state reporting requirements applicable to the Project, Owner shall submit an annual report to Agency, in a form approved by Agency. Such annual report shall include for each of the Affordable Units: the rent, the annual income, and the family size of the Household occupying the Affordable Unit. Such annual report shall also state the date the tenancy commenced for each Affordable Unit, certification from an officer of Owner that the Affordable Unit is in compliance with the Affordable Rental Housing requirements, and such other information the Agency may be required by Law to obtain. Owner shall provide any additional information reasonably requested by the Agency provided such information is directly related to Owner's compliance with this Agreement. 4.11.2 Annual Proof of lnsurance. Annually, beginning in the year following Agency's issuance of the Certificate of Completion, and continuing until the expiration of the Agreement, Owner shall submit proof of insurance as required by this Agreement. 412 All Leases used to rent the Affordable Units are subject to the following: 4.12.1 Annual lncome Certification and Reporting. Owner shall include in leases for all Affordable Units provisions which authorize Owner to immediately terminate the tenancy of any Household one or more of whose members misrepresented any fact material to the Household's qualification as a Household as an extremely low, very low, lower, or moderate income family, as applicable. Each such lease shall also provide that the Household is subject to annual certification, and that, if the Household's annual income increases above the applicable limits for low income family such Household's rent may be subject to increase to the amount payable by tenant under federal, state or local law, except that, consonant with the Law, tenants of the Affordable Units that have been allocated to low income housing tax credits by a housing credit agency pursuant to section 42 of the lnternal Revenue Code of 1986 (26 U.S.C. 42) must pay rent governed by Section 42. 4.12.2 The leases for the Affordable Units shall provide that if the Project is subject to state or federal rules governing low income housing tax 18 credits, the provision of those rules regarding continued occupancy by, and increases in rent for, Households whose incomes exceed the eligible income limitation shall apply in place of the provisions set forth in subsection 4.12.1 above. 4.13 With respect to the Project, Owner shall comply with the following: 4.13.1 Except to any extent othenruise provided in this Agreement, Owner is specifically responsible for all management functions with respect to the Affordable Units including, without limitation, the selection of tenants, certification and re-ceftification of Household size and income, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items and security. Agency shall have no responsibility for management of the Affordable Units of the Project. 4.13.2 Owner covenants and agrees the Affordable Units shall constitute Affordable Rental Housing during the entire Affordability Period. lf Owner fails to comply the requirement to lease the Affordable Units only to qualified Households during the Affordability period, as described in the attached Form of Regulatory Agreement and Declaration of Covenants and Restrictions attached hereto as Exhibit "F," Agency shall be entitled to enjoin Owner from leasing the Affordable Units in the Project, as Owner acknowledges that damages are not an adequate remedy at law for such breach. 5. INDEMNITY; INSURANCE 5.1 Owner shall indemnify, hold harmless and defend Agency, City and each of their officers, officials, employees, agents from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by Agency, City, Owner, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of Owner's performance of this Agreement. Owner's obligations under the preceding sentence shall not apply to any loss, liability, fines, penalties, forfeitures, costs, or damages caused solely by the gross negligence, or caused by the willful misconduct, of Agency, City or any of their officers, officials, employees, agents or volunteers. This section shall survive expiration or termination of this Agreement. 5.2 Following acquisition of the Property, and thereafter, throughout the life of this Agreement, the Owner shall pay for and maintain in full force and effect all policy(ies) of insurance required hereunder with an 19 insurance company either (1) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (2) authorized by the Agency's Risk Manager or his/her designee. The following policies of insurance are required: 5.2.1 Until the Certificate of Completion is recorded, Builders Risk (Course of Construction) insurance in an amount equal to the completed value of the project with no coinsurance penalty provisions. 5.2.2 Following the recording of the Certificate of Completion, COMMERCIAL PROPERTY insurance which shall be at least as broad as the most current version of lnsurance Service Office (lSO) Commercial Property Form CP 10 30 (Cause of Loss - Special Form), with limits of insurance in an amount equal to the full (100%) replacement cost (without deduction for depreciation) of the lmprovements with no coinsurance penalty provisions. Such insurance shall include coverage for business income, including "rental value", in an amount equal to the eighteen (18) months of the annual rent generated by the lmprovements. Coverage for business income, including "rental value," shall be at least as broad as the most current version of lnsurance Service Office (lSO) Commercial Property Form cP 00 30. Owner shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Owner shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to, and approved by, the Agency's Risk Manager or his/her designee. All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar day written notice has been given to Agency. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Owner shall furnish Agency with a new certificate and applicable endorsements for such policy(ies). ln the event any policy is due to expire during the term of this Agreement, Owner shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy. The Builders Risk (Course of Construction) and Property insurance policies shall be endorsed to name Agency as a loss payee. 20 5.3 Owner shall furnish Agency with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the Agency's Risk Manager or his/her designee prior to Agency's execution of this Agreement. lf at any time Owner fails to maintain the required insurance in full force and effect, Owner shall immediately discontinue all work under this Agreement until Agency receives notice that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the Agency. Owner's failure to maintain any required insurance shall be sufficient cause for Agency to terminate this Ag reement. The fact that insurance is obtained by Owner shall not be deemed to release or diminish the liability of Owner, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify Agency, City and each of their officials, officer, employees, agents, and volunteers shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Owner. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Owner. Upon request of Agency, Owner shall immediately furnish Agency with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. Owner will obtain and deliver payment and performance bonds issued by an insurance company admitted in California in good standing as a surety and meeting the criteria for Owner's other insurance under this Agreement, each bond in an amount at least equal to 100% of Owner's estimated construction costs, provided that the Agency hereby waives any requirement for said bonds at all time during which Owner is in full compliance with this Agreement and the Project remains fully funded. Until Agency issues the Certificate of Completion Agency will have access to the Property, after reasonable notice to the Owner (except in emergencies), without charge or fee, during normal construction hours, for purposes of assuring compliance with this Agreement. Agency representatives will comply with all safety rules while on the Project or the Property. 5.4 21 6. 5.5 Owner will design and construct the lmprovements, and after that, prior to any allowable transfer or sale thereof, Owner will maintain the Property according to all applicable laws including, without limitation, all applicable state labor standards, Agency zoning, and development standards, building, plumbing, mechanical and electrical codes, all provisions of the Fresno Municipal Code and all applicable access requirements. Agency makes no representation about which, if any, of such laws, ordinances, regulations, or standards apply to development of the Project. Owner acknowledges that Owner, not Agency, is responsible for determining applicability of and compliance with all local, state, and federal laws including, but not limited to, any applicable provisions of the California Labor Code, Public Contract Code, and Government Code. Agency makes no express or implied representation as to the applicability or inapplicability of any such laws to this Agreement or to the parties' respective rights or obligations hereunder including, but not limited to, payment of prevailing wages, competitive bidding, subcontractor listing, or similar or different matters. Owner further acknowledges that Agency shall not be liable or responsible at law or in equity for any failure by Owner to comply with any such laws, regardless of whether Agency knew or should have known of the need for such compliance, or whether Agency failed to notify Owner of the need for such compliance. 5.6 Following acquisition of the Property, Owner will take reasonable efforts to not permit any lien or stop notice to be filed against the Property, provided Owner may reasonably determine to contest any such lien or stop notice. lf Owner discovers that any lien or stop notice has been recorded against the Property, Owner will notify the Agency within fifteen (15) days following such discovery. lf a claim of lien or stop notice is recorded against the Property or lmprovements, Owner, within 30 days after recordation of a claim of lien or stop notice or within 5 days after Agency's demand, whichever first occurs, will do the following: 5.6.1 Pay and discharge the same; or 5.6.2 Effect the release of such lien by recording and serving upon the claimant a surety bond in sufficient form and amount (i.e. 150%), or otherwise, and provide evidence of same to Agency; or 5.6.3 Give Agency other assurance which Agency, in its sole discretion, deems satisfactory to protect the Agency from the effect of the lien or stop notice. SECURITY F¡NANC¡NG AND RIGHTS OF HOLDERS. 22 7. 6.1 Notwithstanding any other provision of this Agreement, Owner may not grant a security interest in the Property before the Agency issues and records a Certificate of Completion, without the written consent of Agency, provided that Agency hereby approves the recommended security interest of Owner's financial institutions, including their respective successors or assigns, as described in the Financing Plan. CONTINUING OWNER OBLIGATIONS 7.1 ln its performance of this Agreement, Owner covenants by and for itself and its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person, including contractors, subcontractors, bidders and vendors, on account of race, color, religion, ancestry, national origin, sex, sexual preference, âgê, pregnancy, childbirth or related medical condition, medical condition (e.9., cancer related) or physical or mental disability, and in compliance with all applicable federal, state and local laws, regulations and rules including without limitation Title Vll of the Civil Rights Act of 1964,42 U.S.C. Sections 2000, ef seq., the Federal Equal PayAct of 1963, 29 U.S.C. Section 206(d), the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section 621, et seq., the lmmigration Reform and Control Act of 1986,8 U.S.C. Section 1324b, et seq., 42 U.S.C. Section 1981, the California Fair Employment and Housing Act, Cal. Government Code Section 12900, ef seg., the California Equal Pay Law, Cal. Labor Code Section 1197.5, Cal. Government Code Section 11135, the Americans with Disabilities Act, 42 U.S.C. Section 12101, ef seq., and all other applicable anti-discrimination laws and regulations of the United States and the State of California as they now exist or may hereafter be amended. Owner wÍll allow Agency representatives access to its employment records related to this Agreement during regular business hours and upon reasonable notice to verify compliance with these provisions when so requested by the Agency. 7.2 Following acquisition of the Property, Owner will pay before delinquency all ad valorem real estate taxes and assessments on the Property, subject to the Owner's right to contest in good faith any such taxes. Owner will remove any levy or attachment on the Property or any part of it, or assure the satisfaction of the levy or attachment within a reasonable time. Owner will notify Agency prior to applying for or receiving any exemption from the payment of property taxes or assessments on any interest in or to the Property or the lmprovements. Owner further agrees that the prior consent of Agency shall be required if the basis for such exemption is other than for qualified property held by a nonprofit entity that has been determined to be exempt from federal and state income taxation, which consent shall not be unreasonably withheld. 23 8. COVENANTS AND RESTRICTIONS RUNNING WITH THE LAND. The following covenants shall run with the land and shall bind Owner, and Owner's successors in interest to the Property for the periods stated, and shall be fully binding for the benefit of the Plan community and Agency without regard to technical classification or designation, legal or otherwise. 8.1 Owner covenants for itself, its successors, assigns, and every successor in interest to the Property or any part of it that, after closing of any applicable escrow, during construction, and after completing the lmprovements, the Owner shall devote the Affordable Units on the Property to the uses specified in this Agreement for the Affordability Period. All uses of the Affordable Units including, without limitation, all activities Owner undertakes pursuant to this Agreement, shall conform with this Agreement and the Law. Without waiver or limitation, each of the Affordable Units to be constructed pursuant to this Agreement shall be maintained as Affordable Rental Housing pursuant to this Agreement and the Restrictions. 8.2 Owner and those taking under Owner will maintain the Property and all lmprovements on site in reasonably good-condition and repair (and, as to landscaping, if any, in a healthy condition), all according to the Scope of Development and Project Design and related plans, as-amended from time to time. Owner and those taking under Owner shall: (i) maintain all on-site lmprovements according to all other applicable laws, rules, ordinances, orders, and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials; (ii) keep the Improvements free from graffiti; (iii) keep the Property free from any accumulation of debris or waste material; (iv) promptly make repairs and replacements to the on-site lmprovements; and (v) promptly replace any dead, or diseased plants and/or landscaping (if any) with comparable materials. Agency will give Owner written notice of any breach of this Section 8.2. Within 10 days from receipt of such notice, Agency and Owner will meet and confer, and agree to corrective actions and a schedule of performance for such corrective actions. Owner must cure the default within the agreed schedule or within (a) 10 days after the Agency's notice for any default involving landscaping, graffiti, debris, waste material, or general maintenance on the Property; or (b) 30 days after Agency's notice for any default involving the lmprovements. lf Owner does not cure the default within the agreed schedule, Agency, without obligation to, may enter the Property, cure the default, and protect, maintain, and preserve the lmprovements and landscaping. 24 8.3 8.4 Agency may lien or assess the Property for the Agency's expenses in protecting, maintaining, and preserving the on-site lmprovements and aesthetics of the Property, including any lawful administrative charge in the manner used by the Agency in the abatement of public nuisances. The notice and opportunity to cure provided for herein will supplement the noticing, hearing, and nuisance abatement order used by Agency. Owner will promptly pay all such amounts to Agency upon demand. From the Effective Date until the expiration of the Affordability Period, Owner covenants to use and operate the Affordable Units on the Property as Affordable Rental Housing pursuant to this Agreement. Owner covenants for itself and any successors in interest and all persons claiming by, through or under them, in perpetuity, that there shall be no discrimination against or segregation of any person or group of persons because of race, color, creed, religion, sex, sexual preference, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Affordable Units, nor shall Owner itself or any person claiming under or through Owner establish or permit any such practice or practices of discrimination or segregation concerning the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Affordable Units. All deeds, leases, or contracts concerning the Affordable Units shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: ln deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons because of race, color, creed, religion, sex, sexual preference, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation concerning the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein, conveyed. The foregoing covenants shall run with the land." In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: 8.5 25 9. "That there shall be no discrimination against or segregation of any person or group of persons, because of race, color, creed, religion, sex, sexual preference, marital status, national origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation concerning the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased." ln contracts: "There shall be no discrimination against or segregation of, any person, or group of persons because of race, color, creed, religion, sex, sexual preference, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation concerning the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." 8.6 Agency is the beneficiary of the covenants running with the land for itself and for protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit the covenants are provided, without regard to whether Agency has been, remains, or is an owner of any land or interest in the Affordable Units on the Property. Agency may exercise all rights and remedies, and maintain any actions or suits at law or in equity or other proceedings to enforce the covenants for itself or any other beneficiaries. DEFAULTS AND REMEDIES 9.1 Subject to the extensions of time permitted under this Agreement, either party's failure to perform any material action or material covenant as required by this Agreement, following notice and failure to cure, is a "Default" under this Agreement. A party claiming a Default shall give written notice of Default to the other party specifying the Default complained of, and the cure demanded. Except as othenruise expressly provided in this Agreement, the noticing party shall not begin any proceeding against the other party until the other party is given an opportunity to cure the Default. The other party will have 30 calendar days after receiving the notice to cure the Default, ot, if the party 26 9.2 cannot reasonably cure the Default within such 30 days, the other party must begin to cure within the 30 days and diligently pursue the cure to completion, whereupon there shall be no event of Default. Subject to first giving the notice and opportunity to cure, a party may begin an action at law to enforce, or in equity to seek specific performance of, the terms of this Agreement, or to cure, correct, or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. A party must bring any legal action in the Superior Court of the County of Fresno, State of California, in an appropriate municipal court in Fresno County, or in the District of the United States District Court serving Fresno County. lf Owner begins any legal action against Agency, it shall serve process on the Agency by personal service on the Director, or in any other manner the law permits. lf Agency begins any legal action against the Owner, it will serve process on the Owner by personal service on Owner, Owner's Agent or in any other manner the law permits. Except as othenruise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and a party's exercise of one or more rights or remedies will not preclude the party's exercise, at the same or different times, of any other rights or remedies for the same or any other Default of the other party. A party's failure or delay in asserting any right or remedy will not be a waiver of any Default or of any right or remedy, and will not deprive the party of its right to begin and maintain any actíon or proceeding to protect, assert or enforce any right or remedy. The laws of the State of Calífornia shall govern the interpretation and enforcement of this Agreement. 9.3 9.4 9.5 9.6 27 10. GENERAL PROVISIONS 10.1 Any notice, demand, or other communication permitted or required under this Agreement will be in writing and given by personal delivery, or by first-class U.S. mail, postage prepaid, to a party at its respective address below: To Agency: City of Fresno, Housing Successor to the Redevelopment Agency of the City of Fresno ATTN: City Manager 2600 Fresno Street Fresno, C493721 With a Copy to: Executive Director Successor Agency to the Redevelopment Agency of the City of Fresno 2344 Tulare Street, Ste. 200 Fresno, CA93721 To Owner: APEC International, LLC ATTN: Eugene Kim 770 South lrolo Street, Suite 1000 Los Angeles, CA 90005 A party may change its address for notices, demands and communications by giving notice of the new address as provided in this section. The notice shall be deemed given three (3) business days after the date of mailing, or, ¡f personally delivered, when received. 10.2 All of the terms, covenants, and conditions of this Agreement shall be binding upon the Owner and its permitted successors and assigns. Whenever the term "Owner" is used in this Agreement, such term shall include Owner's successors and assigns as permitted under this Agreement. 28 Owner may assign its interest to a California limited partnership with APEC lnternational, LLC. (or another APEC affiliate designated by the APEC), as the Administrative General Partner, a nonprofit corporation to be chosen by Owner as the Managing General Partner, and a tax credit investor chosen by Owner as a limited partner investor, subject to approval by Agency. The amount and terms of the limited partner investor's obligation to make capital contributions must be in a form and substance acceptable to the Agency. 10.3 The Agency may assign or transfer any of its interests, rights, or obligations hereunder at any time to any public agency without the consent of the Owner. 10.4 No member, official, or employee of the Agency shall be personally liable to the Owner, or any successor in interest to Owner, for any Default or breach by the Agency. 10.5 The relationship between the Agency and the Owner is that of redevelopment agency and redeveloper respectively, as permitted by law, and not that of a partnership or joint venture. Agency and Owner shall not be deemed or construed for any purpose to be the agent of the other. 10.6 Whenever this Agreement references an action or approval required or permitted by the Agency, the Director or his or her designee is authorized to act for the Agency as agent of the Agency unless this Agreement, the Law, Constitutional and/or local law provide otherwise, or the context otherwise requires. Whenever this Agreement requires reasonable notice to be provided, such notice shall be in writing and be at least four (4) business days. 10.7 This Agreement may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one and the same agreement. The parties agree that this Agreement will be considered signed when the signature of a party is delivered by facsimile or e-mail transmission. A facsimile or e-mail signature shall be treated in all respects as having the same effect as an original signature. The parties will sign three copies of this Agreement, each of which is deemed to be original. 10.8 This Agreement includes the exhibits and attachments referenced and incorporated in it. This Agreement contains the entire agreement between the parties relating to the transaction contemplated by this Agreement and supersedes all prior or contemporaneous agreements, understanding, representation and statements, whether oral or written. 29 10.9 lf either party begins a lawsuit or arbitration proceeding, in law or equity, to enforce or interpret any provision of this Agreement, the prevailing party will be entitled to recover from the other party reasonable attorneys' fees, court costs, and legal expenses as determined by the court or tribunal having jurisdiction. 10.10 Any waiver, alteration, change, or modification of or to this Agreement, to be effective, must be in writing, and signed by each party. 10.11 lf any term, provision, condition or covenant of this Agreement or its application to any party or circumstances is held invalid or unenforceable, the remainder of this Agreement and its application to persons or circumstances, other than those about whom or which it is held invalid or unenforceable, shall not be affected, and shall remain valid and enforceable to the fullest extent permitted by law. 10.12 Each party represents and warrants to the other that (a) each has read this Agreement, and (b) is signing this Agreement with full knowledge of any rights and obligations each may have, and (c) each has received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or has knowingly chosen not to consult legal counsel, and (d) has signed this Agreement without relying on any agreement, promise, statement or representation by or for the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or othenruise. 1 0.l3 No member, official or employee of Agency has or shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. Owner represents and warrants that it has not paid or given, and will not pay or give, to any third party any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, consultants, engineers, and attorneys. 10.14 The parties will execute such other and further documents, and will take any other steps, necessary, helpful, or appropriate to carry out the provisions of this Agreement. 10.15 No contractor, subcontractor, mechanic, material man, laborer, vendor, or other person hired or retained by with Owner shall be, nor shall any of them be deemed to be, third-party beneficiaries of this Agreement, rather each such person shall be deemed to have agreed (a) that they shall look 30 to Owner as their sole source of recovery if not paid, and (b) except as othenruise agreed to by Agency and any such person in writing, they may not enter any claim or bring any such action against Agency under any circumstances. Except as provided by law, or as othenryise agreed to in writing between Agency and such person, each such person shall be deemed to have waived in writing all right to seek redress from Agency under any circumstances whatsoever. 10.16 Owner hereby covenants and warrants that it is a duly authorized and existing California limited liability company, in good standing; that it shall remain in good standing; that it has the full right, power and authority to enter into this Agreement and to carry out all actions on its part contemplated by this Agreement; that the execution and delivery of this Agreement were duly authorized by proper action of the Owner and no consent, authorization or approval of any person is necessary in connection with such execution and delivery or to carry out all actions of the Owner's part contemplated by this Agreement, except as have been obtained and are in full force and effect; and that this Agreement constitutes the valid, binding and enforceable obligation of the Owner. 10.17 ln the event of any conflict between the body of this Agreement and any exhibit or attachment to it, the terms and conditions of the body of this Agreement will control. nt ul Ht 31 lN WITNESS WHEREOF, Agency and Owner have signed this Agreement, and the Agency has approved this Agreement, on the dates and in the year set forth below. City of Fresno in its capacity as Housing APEC lnternational, LLC Successor to the Redevelopment Agency a California limited liability company of the City of Fresno, By:By: Bruce Rudd City Manager Eugene Kim Managing Member Date:Date: By: Marlene Murphey Executive Director Date: ATTEST: WONNE SPENCE, CMC City Clerk By: Deputy APPROVED AS TO FORM DOUGLAS T. SLOAN City Attorney Deputy Exhibit A: Legal Description of Property Exhibit B: Performance and Payment Schedule Exhibit C: BudgeUFinancial Plan Exhibit D: Certificate of Completion Exhibit E: Scope of Development and Project Design Exhibit F: Form of Regulatory Agreement and Declaration of Covenants and Exhibit Restrictions Exhibit G: Form of Promissory Note Form of Deed of Trust By: 32 Notary acknowledgement 33 EXHIBIT ''4" LEGAL DESCRIPTION OF PROPERTY THE LAND DESCRIBED HEREIN IS SITUATED IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Lots 1 , 2, 3, 4, 5 and 6 in Block 63 of the Town (now City) of Fresno, according to the map thereof recorded June 8, 1876, in Book 1, Page 2 of Maps, Fresno County Records. APN: 466-214-01 34 Items to be Gompleted Time for Performance Estimated Date Amended and Restated Owner Participation Agreement Terms and Conditions. The Developer, the City of Fresno, and the Housing Successor Agency to the City of Fresno shall agree upon the terms and conditions of the amended and restated Owner Participation Agreement (originally dated March 9,2011). Gommitment Letter. The Housing Successor Agency to the City of Fresno shall issue a commitment letter to Developer consistent with the terms and conditions of the amended and restated Owner Participation Agreement. Purchase and Sale Agreements. The Developer, the City of Fresno, and the Housing Successor Agency to the City of Fresno shall enter into the necessary purchase and sale agreements or letter of intent for the sale of that certain real property as described therein to Developer. Submission of lnfill Application. Developer shall submit an application to the California Department of Housing and Community Development lnfill I nfrastructure Grant Program. lnfill Award. The Developer shall receive notification of the lnfill Award. Submission of Plans. The Developer shall submit Building, Civil Engineering, and Fire Protection Plans to the City of Fresno for review. Priorto Dec 10,2014 Prior to Dec 10,2014 Prior to Dec 10,2014 On or before Dec 10,2014 May 2015 April2015 EXHIBIT''B'' Performance and Payment Schedule SCHEDULE OF PERFORMANCE 35 Items to be Completed Time for Performance Estimated Date Submittal of TGAC Application The Developer shall submit a9o/olax credit application to TCAC 9% TCAC Award The Developer shall receive notice of a 9o/o lax credit award from TCAC Amended and Restated Owner Participation Agreement Documents. The Developer, the City of Fresno, and the Housing Successor Agency execute all of formal documents required to amend and restate the Owner Participation Agreement. lncluding an Amended and Restated OPA, Note, Deed of Trust, and Regulatory Agreement. Submission and Approval--Certificates of lnsurance. The Developer shall furnish the Agency appropriate certificates of bodily injury and property damage insurance policies. Loan Disbursement. The Agency shall disburse the loan proceeds in accordance with the Amended and Restated OPA documents. Gommencement of Construction of Developer's lmprovements. Within 30 days after receipt of the required building permits by the Developer, construction shall commence on the improvements to be constructed on the Project Site. Gompletion of Gonstruction of Developer lmprovements. The Developer shall complete construction of the lmprovements. July 2015 Nov 2015 Upon execution of the Amended and Restated Owner Participation Agreement Documents. On a schedule that will coordinate with the Developer's Construction Schedule. On a schedule that will coordinate with the Developer's Construction Schedule. Sept 2015 Nov 2015 Nov 2015 Dec 2015 Dec 2016 36 Items to be Completed Time for Performance Estimated Date lssuanc+Gertificate of Gompletion. The Agency shall furnish the Developer with a Certificate of Completion on the Project. Promptly after completion of all construction and upon written request thereof by the Developer. Jan 2017 The above Schedule of Performance is based upon the Developer obtaining an award from the California Department of Housing and Gommunity Development Infill lnfrastructure Grant Program. lf the Developer does not receive the lnfill award then the Schedule of Performance shall be revised to allow the Developer to submit an application to the Galifornia Department of Housing and Gommunity Development Multi Family Housing Program in the first available application round in 2015. lmprovements shall be completed with _ months of start of construction. Construction to commence by: Construction to be complete by: Month_Day_Year Month _ Day _ Year ("Completion Date") SCHEDULE OF AGENCY LOAN REPAYMENT Agency shall receive 25o/o of the Residual Receipts (as defined in the Amended and Restated OPA). The first payment date shall be May 15th of the year that is one (1) year after the certificate of completion is filed for the Project. a) Annual payments are due on May 15th of each year beginning on May 15th ("Annual Payment Date") of the year immediately following the Project Completion Date set forth in the Certificate of Completion. The loan shall bear one percent (1%) simple interest and will mature fifty-five (55) years after the deed of trust is recorded. b) On the first Annual Payment Date and on each Annual Payment Date thereafter, Owner will submit to the Agency an audited project financial statement (covering the previous calendar year) along with Lender's pro rata share of the annual Project Residual Receipts (as defined below) as calculated by Owner. The actual and final amount of Agency's share of Residual Receipts shall be determined by the Agency upon review of the audited financial statement. "Residual Receipts" are determined on a cash basis and defined as revenue minus the total of approved operating expenses, deferred portion of the developer fees in the development budget, approved debt service, deposits to operating and replacement reserve accounts per contract, and approved related party expenses. At Loan maturity, the ent¡re outstanding principal, any accrued interest, and other amounts due to the Agency under the OPA documents shall be due and payable. Agency's share of Residual Receipts shall be 25o/o. 37 EXHIBIT ''D'' Gertificate of Completion CERTIFICATE OF COMPLETION RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of City of Fresno 2600 Fresno St. Fresno, Ca.93721 Attention: City Manager (SPACE ABOVE THIS LINE FOR RECORDER'S USE) This Certificate of Completion is recorded at the request and for the benefit of the City of Fresno in its capacity as the Housing Successor to the Redevelopment Agency of the City of Fresno and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno, a municipal corporation By: Bruce RuddIts: City Manager Dated: By: Marlene Murphey Executive Director Dated: 38 Certificate of Completion 1263 Broadway Plaza Mixed Use Residential Rental Project RECITALS: A. By an Amended and Restated Owner Participation Agreement (the "Agreement") dated 2014 between APEC International, LLC., a California limited liability company ("Owner") and the City of Fresno in its capacity as the Housing Successor to the Redevelopment Agency of the City of Fresno, a municipal corporation ("Agency"), Owner agreed to construct certain residential units on the premises legally described in Attachment "A" hereto (the "Property") and preserve the Affordable Units, as defíned in the Agreement as rental housing for I I lncome Households with the assistance of Agency housing set aside funds while meeting the Affordable Housing, income targeting and other requirements of the Community Redevelopment Law set forth at California Health and Safety Code Sections 33000 et seq. for a fifty-five (55) year Affordability Period according to the terms and conditions of the Agreement. B. The Agreement was recorded on t 1,20 in the Official Records of Fresno County, California as Instrument No. C. Under the terms of the Agreement, after Owner completes the construction on the Property, Owner may ask Agency to record a Certificate of Completion. D. Owner has asked Agency to furnish Owner with a recordable Certificate of Completion. E. Agency's issuance of this Certificate of Completion is conclusive evidence that Owner has completed the construction on the Property as set forth in the Agreement. NOW THEREFORE: 1. Agency certifies that Owner commenced the construction work on the Project on Project on Agreement. l, 20_, and completed the construction work on the 20_, and has done so in full compliance with the 2. This Certificate of Completion is not evidence of Owner's complÍance with, or satisfaction of, any obligation to any mortgage or security interest holder, or any mortgage or security interest insurer, securing money lent to finance work on the Property or Project, or any part of the Property or Project. 3. This Certificate of Completion is not a notice of comptetion as referred to in California Civil Code section 3093. 4. Nothing contained herein modifies any provision of the Agreement. 39 lN WITNESS WHEREOF, the Agency has executed this Certificate of Completion as of this _ day of 20 The City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno, a municipal corporation By:. Bruce Rudd City Manager By: Marlene Murphey Executive Director Dated: Owner hereby consents to recording this Certíficate of Completion against the Property described herein. Dated:20 APEC lnternational, LLC, a California limited liability company By: Eugene Kim Managing Member THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY PUBLIC. ATTEST: WONNE SPENCE, CMC City Clerk By: Deputy APPROVED AS TO FORM DOUGLAS T. SLOAN City Attorney By: Deputy 40 EXHIBIT A LEGAL DESCRIPTION THE LAND DESCRIBED HEREIN IS SITUATED IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Lots 1,2,3, 4,5 and 6 in Block 63 of the Town (now City) of Fresno, according to the map thereof recorded June 8, 1876, in Book 1, Page 2 of Maps, Fresno County Records. APN: 466-214-01 41 EXHIBIT ''E'' SCOPE OF DEVELOPMENT AND PROJECT DESIGN 42 HOTEL FRESNO DESIGN SCOPE The Hotel Fresno building will be completely renovated and transformed into a mixed-income multi-family project with 79 residential housing units and common area spaces. Upon completion the Hotel Fresno project will consist of six floors of apartments, common space and offices space on the ground floor, and a structured parking garage (to be located on property to the rear of the building). The residential areawill include a community room with full kitchen, guest restrooms, and management offices. There will be 24 one-bedroom units, 28 two-bedroom units, 12 three-bedroom units, and 15 loft-style units. The units will range in average sizes from one-bedroom units of approximately 550 square feet; two-bedroom of approximately 800 square feet;the three-bedroom units of approximately 1,100 square feet, and loft-style units of approximately 900 square feet. All units will have central heat and air conditioning. The property will have controlled access, and will include laundry rooms on site. In addition, we plan to install a wireless high speed intemet network that meets TCAC standards. Therefore, tenants will also have access to free high speed wireless internet in each unit and the community rooms. Renovations will be made to the building exterior and certain interior spaces which will meet the Secretary of Interior Standards. This will ensure that Hotel Fresno project will qualify to be placed on the National Register of Historic Places. BROADWAY STREET SITE PtAN Ftu LUtl- U) I F l.U tuÉF U) I PROPOSED PARKING STRUCTURE <ALE / 6 -=1-a jj'l; c ı0-ÞN¿Dts#t<!O(!-oo ûı, ñO Pri 98 ØY tIJ ÀÉ.ctLo,ãilEFO ^cLÉ. liHi¡¡ L'z 6 buts¿IÉ NEztsÉ, =cð uzo å¡ UÁ Éã! F ;!a E é;l Ë ;qe a 9ËË g ?r.¡- ù!'i ¡y à- A|D'E SHTET NO A-0 OF HOTEL FRESNO (Renovation Project) I 257 Broadwav Street Fresno, CA 93721 JONES & MARTINEZ, ARCHITECÍS, INC, ARCHIIECIURE.PLANNINGtENGINEERING!CONSlR6llN WAGEMENI h¡ h'4rnftâ'.ı {oi. øj@-.m HOTEL BA9E]',1ENT rRA3l. ROOv I t,-lNI (ìr lo lo+ _UTD nu) ^rrl<nU'Z j C)l-U->h()< ffl frl(n- N) o.) (/) ì . r'.r lIY-a Ø .,-ì (D. (r; Øtq -o'-(-c Øl: (, r'l Øs Øx Øì ØB ü ,-6' à ,. Þ'-ô' OG oÞ ou HOTEL FRESNO (Renovation Project) 1 257 Broadwav Street Fresno. CA 93721 JONES & MARTINEZ, ARCI.IITECTS, INC. ARCBIIECTURE'PLANNING.ENGINEERING¡CONSIRUCf lù MNAGEMENI Fù 6r0)142rr¡ ro(4Èf..&rrF l'Úr wtrÞrÎû.rø !l)4 0a' Ufrlc) ^rfn fn f- Ur Cr'J L I (/) \ Ø: Øì Øì (Dì-' a,rl c,_p Øì Øà3 (D: Ø3 CDAI Ø\:l I Ur':-'.1_^l -U nxz c) (1, -U C) frì C)In\foñ HOTEL FRESNO (Renovation Project) 1 257 Broadwav Street Fresno, CA 93721 MARIINEZ, ARCHITECTS, INC. rEL:ßiqero{gdbrc¡ùrGãu.r sıo Nhrìì-m i9ü ,/rB cì' êF4¡rm(ı--za -uo>Z Ðt,^ c)znG)>U(ntt -U>r--ìmnñur- (¡ O t" *"ì.J;= (/) -ò ØL: Ørì ØL: ØH Ø!ì l-JØo¡ ØE n o ol llu HOTEL FRESNO (Renovation Project) 1 257 Broadwav Street Fresno, cA 83721 JONES & MARTINEZ, ARCI{¡TECTS, INC. ARCHIIEcIURE.PLANNING.ENGINEERING'CONSÍ RUclld MNAGEMENI FÞ rro)?rÐ2! ¡d rd,4n6ftrq(ñ PRELIMINARY DRAWINCS TOT fOR GOIISTRUGTIOII â ^oYq) ØY uJ 0-tctLo 'Eil9FO ^cYq) c) :).\ 4aÒ N* UFzt .3Øa tJ<q:ts! l)9Éç<¡.=NÍzitstec<= =ã.ðl 6= ZEoi utTÐ DRAWING INDEX COVER SHEET & INDEX PROJECT DAÏAilNFORMATION BASE[¡ENT PARKING PLAN ON-GRADE PARKING PLAN DECK PARKINO PLAN SITE PLAN FIRST FLOOR PLAN BASEMENT PLAN SECOND FLOOR PLAN THIRD FLOOR PLAN FOURTH FLOOR PLAN FIFTH FLOOR PUN SIXTH FLOOR PLAN SEVENTH FLOOR PLAN ROOF PLAN NORTN & EAST ELEVATIONS SOUTH & WEST ELEVATIONS SECTION TH SK1-B SK1-G SK1-D T-l OF BUITDING TABUTATIONS UNITS SQ. FT.. 64,707 Sq.Ft. ... 13,802 Sq.Ft. . 8,181 Sq.Ft 8ô,690 Sq.Ft. co¡,,tMoN AREA ......................... MISCELLANEOUSAREA,........ TOTAL BUILDING AREA ............ NOTES: 1. FIRE SPRINKLER SYSTEI\4 TO I\4EET NFPA 13 2. FIRE SPRINKLERS TO BE PROVIDED TO INCLUDE ALL EXIT ACCESS WAYS. COM¡/ON AREA: Recreation Room, Laundry, Corridors, Lounge, Off¡ce, Toilets MISCELLANEOUS AREA: Stairs Shaft, Elevator Shaft, Trash Room, Storage UNITS TABULATION OBR 1BR 1BR (H) 2BR 2BR (H) 3BR Total Units 2ND FLR 15 15 BUITDING CONSTRUCTION 3RD FLR 6 I 14 4TH FLR 4 4 4 12 GARAGE: CONSTRUCTION, TYPE I WITH FIRE SPRINKLERS OCCUPANCY GROUP, R.3 PARKING/GARAGE AREA: Subterranean '16,189 Sq.Ft. On Grade 16,189 Sq.Ft.Deck '16,104 Sq.Ft Total Garage Area ... .... 48,482 Sq.Ft. APARTMENTS: CONSTRUCTION, 7 STORIES TYPE HR WITH FIRE SPRINKLERS OCCUPANCY GROUP, R-3 (38 UNITS ARE AFFORDABLE) APARTMENT BUILDING AREA = 86,ô90 SQ. FT. sTH FLR 4 4 4 12 ôTH FLR 4 4 4 12 ZTH FLR 6 ı 14 Totals 15 24 2A 12 79 THIS PROJECT SHALL COMPLY WITH : 2013 California Building Code !" tE r s:P* q8z'=ØYt! 0-tcL!o úqFOAE LÍ. oO-ÞN(,N à-ì<D()ñ-oo c0b NgJ R'l Li:z1 ø2 t¡;u:F! --¡(J:É;<¡-¡NIuuzí ts9É,4<1E! .ı: ørzioi Ès s-à i' EÊ! È ¡iÈ 5 ;;å Ë ¿IE ã lig ? FÉË i Si tl1¿,b I T-l.l OF Ð rÀulñ)- |iixxx i cOf.O,:: úl:::('l::: l,Þ Ërl5a G! JONES & MART¡NEZ, ARCI{ITECÍS, INC.HOTEL FRESNO (Renovation Project) 1 257 Broadwav Street Fresno, CA E3721 rEL Éú'ei4e .a r¡rô)1tr2rdreE45Ètu4(¡ I IJUIN- iixxx cO.f o : : :Ë-'t:i:',ii: :'::: +oQpo\ ;P É{a lr JONES & MARTINEZ, ARCHITECTS, INC.HOTEL FRESNO (Renovation Project) 1257 Broadwav Street Fresno, CA 93721 rvll G)42-5 I HOTEL FRESNO (Renovation Project) 1 257 Broadwav Street Fresno, cA E3721 JONES & MARTINEZ" ARCHITECTS, INC. rELrlr0)erM f*É10,2ræ¡d¡dcú{Þn.F ôdrú-¡ffi:.ù $zÉo=-c{î:Eq¡rt m ız o T ù ! q mÞat, ttt ltt =oz trImffitr!m GD JONES & MARIINEZ, ARCHITECTS, INC.HOTEL FRESNO (Renovation Project) 1257 Broadwav Street Fresno, CA E372'1 Éar dr0)lsrldhr¡]@ftlnrñ iòú:@iFffi!:rñ Ft]/lse i l-Ll I ii Ì-ìItnlÞ T,E ¡ TEE Etr ï1 E F]E E EN l =l E m m m EX EN m E m EN -1 J l I l+l +Il -hI E E ß=E m E m m E m E Þ EN mÞ m mÞ E m F rn EN F m m E EN EN û= m EN F EN m F m m FE EN ß= E[ mÞ I\N m m m m tx sþ U ^ooT l"rl II a- N IJ \J I l; tai5 8øtñocù-{ öm ñ =oz JONES & MARTINEZ, ARCHITECTS, INC. ÁRCHIIECIURE.PUNNING.ENGINEERING.CONSIRUCIION ÑANAGEt EII F re(ÞdrjN¡&¡rrM HOTEL FRESNO (Renovaiion Project) 1257 Broadwav Street Fresno. cA 83721 ÀI IT 7J lÉ m EIE m E m lil E m ü- m ilIE m ß= m EX E m mlmrft mt:l r=l nl'"Ë Erlffilrfir lril | |mimimiD-i m lEl nil lt--rì rLJ mim m HOTEL FRESNO (Renovation Project) 1 257 Broadwav Street Fresno, cA 83721 JONES & MARTINEZ, ARCHTTECÍS, INC. ARCHIIECIU RE. ruNNlN G. E NGINEÉR¡NG. CONSIRUCfIN MNAG€MENI rÈL Érqsñ3 rMißiq1q2:dre'qsfÈnrø v4d'8¡io.É.:6 EXHIBIT "F'' REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICTIONS FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF FRESNO IN ITS CAPACITY AS HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO 2600 Fresno Street Fresno, CA 93721 Attn: City Manager ttffi" Above This Line for Recorder's Office Use REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICT]ONS THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICTIONS ("Agreement") is made and entered into this , by and between the CITY OF FRESNO lN ITS CAPACITY AS THE HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a municipal corporation ("Agency"), and APEC INTERNATIONAL, LLC., a California limited liability company ("Owner"). RECITALS: A. Pursuant to an Amended and Restated Owner Participation Agreement by and between Agency and Owner dated ,2014 (the "OPA"), Agency has provided to Owner financial assistance in the amount of One Million Nine Hundred Thousand Dollars ($1,900,000.00) in Agency Loan funds (the "Agency Assistance"), for the purpose of assisting Owner in the acquisition of real property and the construction of a residential apartment complex thereon wherein no less than nineteen (19) and no more than forty (40) of the residential units shall be rented to Extremely Low, Very Low, Lower, and/or Moderate lncome households, on that certain real property located in the City of Fresno, County of Fresno, State of California, more particularly described in Exhib¡t "4" attached hereto and incorporated herein by reference (the "Property"). B. Pursuant to the OPA, Owner has agreed to construct and maintain a rental apartment housing project consisting of seventy nine (79) total residential units 43 (hereinafter referred to collectively as the "Project") on the Property. The Project is also referred to in the OPA as the "Project," and is further described in the Scope of Development and Project Design attached to the OPA. C. Agency, City, and Owner now desire to place restrictions upon the use and operation of the Project, in order to ensure that the Project shall be operated continuously as a rental apartment housing project with no less than nineteen (19) and no more than forty (40) of the units available for rental by Extremely Low, Very Low, Lower, and/or Moderate Income persons for the term of this Agreement. AGREEMENT: NOW, THEREFORE, the Owner and Agency declare, covenant and agree, by and for themselves, their heirs, executors, administrators and assigns, and all persons claiming under or through them, that the Property shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied, subject to the covenants and restrictions hereinafter set forth, all of which are declared to be in furtherance of a common plan for the improvement and sale of the Property, and are established expressly and exclusively for the use and benefit of the Agency, the residents of the City of Fresno, and every person renting a dwelling unit on the Property. AFFORDABILITY RESTRICTIONS RUNNING WITH LAND In addition to the covenants and conditions contained in the OPA, the following California Community Redevelopment Law (California Health & Safety Code Section 33000 et seq.) affordability requirements shall be imposed upon the forty (40) Affordable Units on the Property funded under the Agreement and shall bind the Owner and all purchasers of the Property and their successors until the date that is fifty-five (55) years following recordation of the Agency's Certificate of Completion as defined in the OPA. The Affordable Units on the Property are held and will be held, transferred, encumbered, used, sold, conveyed and occupied subject to the covenants, restrictions, and limitations set forth in this Agreement, all of which are in furtherance of the Project, the Agency's Community Redevelopment Law and Plan Area obligations including Agency's obligations set forth at California Health & Safety Code sections 33334.2 et seq and 33413 (a) with respect to Housing Set Aside Funds and replacement dwelling units at affordable rent within the jurisdiction of the Agency. All of the restrictions, covenants and limitations will run with the land and will be binding on all parties having or acquiring any right, title or interest in the Affordable Units upon the Property or any part thereof, will inure to the benefit of the Agency, and will be enforceable by it. Any purchaser under a contract of sale or other transferee of an interest covering any right, title or interest in any part of the Affordable Units upon the Property, by accepting a deed or a contract of sale or agreement of purchase, accepts the document subject to, and agrees to be bound by, any and all restrictions, covenants, and limitations set forth in this Agreement until the date that is fifty-five (55) years following recordation of the Agency's Certificate of Completion. 44 1. Restrictions. The following covenants and restrictions ("Restrictions") on the use and enjoyment of the Affordable Units upon the Property shall be in addition to any other covenants and restrictions affecting the Property, and all such covenants and restrictions are for the benefit and protection of the Agency and shall run with the Affordable Units upon the Property and be binding on any future owners of the Property and inure to the benefit of and be enforceable by Agency. These covenants and restrictions are as follows: a. From the date of recordation of this Agreement until the expiration of the Affordability Period, the no less that nineteen (19) but no greater than forty (40) Affordable Units funded under the OPA are to be used as Extremely Low, Very Low, Lower, and/or Moderate lncome Affordable Rental Housing and affordable dwellings as provided for in the OPA and this Agreement. Owner agrees to file a recordable document setting forth the Project Completion Date and the Affordability Period as and when determined by the Agency. Unless otherwise provided in the Agreement, the term "Affordable Rental Housing" shall include without limitation compliance with the following requirements: Nondiscrimination. There shall be no discrimination against nor segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or handicap in the sale, transfer, use, occupancy, tenure, or enjoyment of any of the Property, nor shall Owner or any person claiming under the Owner, establish or permit any practice of discrimination or segregation with reference to the selection, location, number, use or occupancy of owners or vendees of the Property. Principal Residence. Each of the Affordable Units upon the Property shall be leased only to natural persons, who shall occupy such as a principal residence. Income Requirements. Each of the Units constituting Affordable Rental Housing upon the Property may be leased only to (a) natural person(s) whose annual household income at the time of initial occupancy is not greater than thirty percent (30%), fifty percent (50%), eighty percent (80%), and/or one hundred twenty percent (120%) of the most recent annual median income calculated and published by HUD for the Fresno Metropolitan Statistical Area applicable to such household's size, and at an affordable rent for Extremely Low, Very Low, Lower and/or Moderate Income households as applicable (as per the terms provided in the OPA), consistent with the applicable California Redevelopment Law, including California Health & Safety Code Section 50053(b) (collectively, the "Low- lncome Requirements"). 45 Injunctive Relief and Recapture. Should any of the Affordable Units constituting Extremely Low, Very Low, Lower and/or Moderate lncome Affordable Rental Housing upon the Property not continue, subsequent to the initial occupancy, to satisfy the Extremely Low, Very Low, Lower and/or Moderate lncome Requirements, then, during the Affordability Period, such Unit(s) shall be made available for subsequent lease only to Households that qualify as a required Extremely Low, Very Low-, Lower, or Moderate-lncome Household, as defined in California Health & Safety Code Sections 50106, 50105, and 50079.5 for use as the Household's principal residence. 2. Enforcement of Restrictions. Without waiver or limitation, the Agency shall be entitled to injunctive or other equitable relief against any violation or attempted violation of this Agreement, including the Restrictions, and shall, in addition, be entitled to damages for any injuries or losses resulting from any violations thereof. 3. lncome Computation and Certification Reportinq Requirements. Prior to each Household's occupancy of an Affordable Unit, Owner shall comply with all of the following requirements: a. Income Computation. Within 120 days prior to a Household's occupancy of an Affordable Unit, Owner shall obtain and maintain on file an Income Computation and Certification form, attached hereto as Exhibit "B," from each such Household dated immediately prior to the date of initial occupancy in the Project by such Household. ln addition, the Owner will provide such further information as may be required in the future by the Agency. Owner shall use its best efforts to verify that the income provided by an applicant is accurate by taking the following steps as a part of the verification process: (i) obtain three (3) pay stubs for the most recent pay periods; (ii) obtain a written verification of income and employment from applicant's current employer; (iii) obtain an income verification form from the Social Security Administration and/or California Department of Social Services if the applicant receives assistance from either agency; (iv) if an applicant is unemployed or did not file a tax return for the previous calendar year, obtain other verification of such applicant's income as is satisfactory to the Agency; and (v) obtain such other information as may be requested by the Agency. A copy of each such completed lncome Computation and Certification form shall be filed with the Agency prior to the occupancy of an Affordable Unit by a Household whenever possible, but in no event more than thirty (30) days after initial occupancy by said Household. b. Income Recertification. lmmediately prior to the first anniversary date of the occupancy of an Affordable Unit by a Household and on each anniversary date thereafter, Owner shall recertify the income of such Household by obtaining a completed Income Computation and Certification form based upon the current income of each occupant of the Affordable Unit. ln the event the recertification demonstrates that such Household's income exceeds the income at which such Household would qualify to rent the Affordable Unit, such Household will no longer qualify for Affordable Rent. Owner shall provide the Agency with a copy of each such completed recertification with the next submission of Certificate of Continuing Program Compliance, as specified herein. 46 c. Certificate of Continuing Program Compliance. Upon the issuance of the Certificate of Completion and annually by October 31 of each year, or at any time upon the written request of Agency, Owner shall advise the Agency of the occupancy of the Project by delivering a Certificate of Continuing Program Compliance, attached hereto as Exhibit "C," certifying: (i) the number of Affordable Units of the Project which were occupied or deemed occupied pursuant to this Agreement by a Household during such period; and (ii) to the knowledge of Owner either: (a) no unremedied default has occurred under this Agreement; or (b) a default has occurred, in which event the Certificate of Continuing Program Compliance shall describe the nature of the default and set forth the measures being taken by the Owner to remedy such default. d. Maintenance of Records. Owner shall maintain complete and accurate records pertaining to the Affordable Units, and shall permit any duly authorized representative of the Agency to inspect the books and records of Owner pertaining to the Project including, but not limited to, those records pertaining to the occupancy of the Affordable Units. e. Reliance on Tenant Representations. Each lease between Owner and a Household shall contain a provision to the effect that Owner has relied on the income certification and supporting information supplied by the Household in determining qualification for occupancy of the Affordable Unit, and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease. 4. Acceptance and Ratification. All present and future owners of the Property and other persons claiming by, though, or under them shall be subject to and shall comply with the above Restrictions. The acceptance of a deed of conveyance to the Property shall constitute an agreement that the Restrictions, as such may be amended or supplemented from time to time, is accepted and ratified by such future owners, tenant or occupant, and such Restrictions shall be a covenant running with the land and shall bind any person having at any time any interest or estate in the Property, all as though such Restrictions were recited and stipulated at length in each and every deed, conveyance, mortgage or lease thereof. 5. Benefit. This Agreement and the Restrictions herein shall run with and bind the Property for a term commencing on the date this Agreement is recorded in the Office of the Recorder of the County of Fresno, State of California, and expiring upon the expiration of the Affordability Period. The failure or delay at any time of Agency and/or any other person entitled to enforce these Restrictions shall in no event be deemed a waiver of the same, or of the right to enforce the same at any time or from time to time thereafter, or an estoppel against the enforcement thereof. 6. Costs and Attornev's Fees. In any proceeding arising because of failure of Owner or any future owner of the Property to comply with the Restrictions required by 47 this Agreement, as may be amended from time to time, Agency shall be entitled to recover its respective costs and reasonable attorney's fees incurred in connection with such default or failure. 7. Waiver. Neither Owner nor any future owner of the Property may exempt itself from liability for failure to comply with the Restrictions required in this Agreement. 8. Severability. The invalidity of the Restrictions or any other covenant, restriction, condition, limitation, or other provision of this Agreement shall not impair or affect in any manner the validity, enforceability, or effect of the rest of this Agreement and each shall be enforceable to the greatest extent permitted by law. 9. Pronouns. Any reference in this Agreement and the Restrictions herein to the masculine, feminine, or neuter gender herein shall, unless the context clearly requires the contrary, be deemed to refer to and include all genders. Words in the singular shall include and refer to the plural, and vice versa, as appropriate. 10. lnterpretation. The captions and titles of the various articles sections, subsections, paragraphs, and subparagraphs of this Agreement are ínserted herein for ease and convenience of reference only and shall not be used as an aid in interpreting or construing this Agreement or any provision hereof. 11. Capitalized Terms. All capitalized terms used in this Agreement, unless otherwise defined herein, shall have the meanings assigned to such terms in the OPA. 12. Amendments. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records of the County of Fresno. 13. Notice. Any notice required to be given hereunder shall be made in writing and shall be given by personal delivery, or by certified or registered mail, postage prepaid, return receipt requested, at the addresses specified below, or at such other addresses as may be specified in writing by the parties hereto: Agency:City of Fresno, Housing Successor to the Redevelopment Agency of the City of Fresno 2600 Fresno Street Fresno, CA 93721 Attn: City Manager City Attorney Fresno City Hall 2600 Fresno St. Copies to: 48 Fresno, CA 93721 Executive Director Successor Agency to the Redevelopment Agency of the City of Fresno 2344 Tulare Street, Ste. 200 Fresno, C493721 Owner: APEC lnternational, LLC Attention: Eugene Kim 770 South lrolo Street, Suite 1000 Los Angeles, CA 90005 The notice shall be deemed given three (3) business days after the date of mailing, or, if personally delivered, when received. 14. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 15. COUNTERPARTS: ELECTRONIC SIGNATURES. This Agreement may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one and the same agreement. The parties agree that this Agreement will be considered signed when the signature of a party is delivered by facsimile or e- mail transmission. A facsimile or e-mail signature shall be treated in all respects as having the same effect as an original signature. 16. FURTHER ASSURANCES. The parties will execute such other and further documents, and will take any other steps, necessary, helpful, or appropriate to carry out the provisions of this Agreement. IEND-- STGNATURES ON NEXT PAGEI 49 lN WITNESS WHEREOF, the Agency and Owner have executed this Regulatory Agreement and Declaration of Covenants and Restrictions by duly authorized representatives on the date first written hereinabove. The City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno, a municipal corporation By: Bruce Rudd City Manager By: Marlene Murphey Executive Director Dated: Owner hereby consents to recording this Certificate of Completion against the Property described herein. Dated:,20- APEC lnternational, LLC, a California limited liability company By: Eugene Kim Managing Member Exhibit A: Legal Description of Property Exhibit B: Income Computation and Certification Form Exhibit C: Certificate of Continuing Program 50 STATE OF CALIFORNIA COUNTY OF On before me personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public lsEALl 51 STATE OF CALIFORNIA COUNTY OF On before me, , personally apoeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/theír authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Wtness my hand and official seal. Notary Public lsEAL] ilt 52 EXHIBIT A LEGAL DESCRIPTION THE I.AND DESGRIBED HEREIN IS SITUATED IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Lots 1 , 2, 3,4, 5 and 6 in Block 63 of the Town (now City) of Fresno, according to the map thereof recorded June 8, 1876, in Book 1, Page 2 of Maps, Fresno County Reoords. APN: 466-214-01 EXHIBIT'B' TO REGUI.ATORY AGREEMENT AND DECLARATION OF RESTRICTIONS City of Fresno as Housing Successor to the Redevelopment Agency of the Gity of Fresno Multi-Familv Housinq Proqram INCOME COMPUTATION AND CERTIFICATION *Household is a group of related or unrelated persons occupying the same house with at least one member being the head of the household. lf roommates, please complete above form as "Self'for each roommate. Use a separate page for additional household members. Show income received from the following sources by all persons listed above. Do not show income from persons less than 14 years of age. 2344Tula¡e Street Suite 200 Fresno, C493721 www.ftesnorda.com 559.621.7628 54 tertv lnformat¡on Name of Property:Number of Bedrooms (see table on page 3 for allowable rents) lncome Category Maximum lncome Level of Household (percent of Area Median lncome)Property Address: Rental Agent (Name):! 0 (studio)tr 30% of AMI ! 1 bedroom ! 50% of AMI Owner Certifi cation (Signature):! 2 bedrooms tr 80% of AMI ! 3 bedrooms Moderate ! 120% of AMI Owner has relied on the income certification and supporting information supplied by the Applicant in determining qualification for occupancy of the Affordable Unit, and any ma+a¡ial m¡êê+â+âñañ+ in cr r¡h ¡a¡{ifi¡afinn lrrr Annli¡rnf /r¡¡hafhor ^r ñ^f ¡ñfâñt¡^hal\ mav E ¡ be cause for immediate termination of such lease ! Gontact lnformation lnformation on lease Contact Phone No.Other Phone No. 1. 2. 1 2 (if different) 1. 2. (if different) 1. 2. (if different) List all members of the household*to live at the address listed above. Yes ¡!Waoes or salarv from emolovment. !n Earnings from self-employment !!Unemployment Compensation ¡¡Social Security or Supplemental Security lncome (SSl) n !Veteran's Benefits ¡l Worker's Compensation ¡¡Child support or alimony payments n !Pensions or Annuities/Railroad Retirement !tr Property rental income ¡!Aid to Families MDependent Children(AFDC) ¡¡Dividends/lnterest !n Other types of income: being duly sworn, depose and say that l/we are year-round occupants of (ADDRESS, C|TY & ZrP CODE). lA/t/e the applicant(s) certify that all information in this certification and all information furnished in support of this certification is correct and complete to the best of my/our knowledge. lA/Úe understand that the willful falsification of this information (whether or not intentional) will be cause for immediate termination of such lease. lA/Ve agree to provide additional information that may be requested to process this income certification. I certify that my income does not exceed the stated income level noted on page I of this document, and that I am eligible for a unit made available at affordable rent for lower income households, as defined by California Health & Safety Code ("H.&S.C.") Section 50053(b), to persons and families of low income, as defined in H.&S.C. Section 50093, as shown in the table below. lA/Úe have read the aforementioned statement and release, and understand all of the items. llVVe execute it voluntarily, on the date listed below, with full knowledge of its significance. lA/úe certify under penalty of perjury that the facts and statements presented in this lncome Computation and Certification, as well as the attached documents are true and accurate. Perjury is punishable by imprisonment in the state of California. (CA Penal Code Section 118 & 126). APPLICANT DATE APPLICANT DATE lncome Verification Owner shall use its best efforts to verify that the income provided by an applicant is accurate by taking the 55 following steps as a part of the verification process: (i) obtain three (3) pay stubs for the most recent pay periods; (ii) obtain a written verification of income and employment from applicant's current employer; (iii) obtain an income verification form from the Social Security Administration and/or California Department of Social Services if the applicant receives assistance from either agency; (iv) if an applicant is unemployed or did not file a tax return for the previous calendar year, obtain other verification of such applicant's income; and (v) obtain such other information as may be requested by the Agency. A copy of each such completed lncome Computation and Certification form shall be completed and made available for Agency review prior to the occupancy of an Affordable Unit by a Household whenever possible, but in no event more than thirty (30) days after initial occupancy by said Household. 2014 Maximum Rent Limits a Affordable Rent for Extremely Low lncome Households is the product of 30% times 30% of the area median income adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and Code Section a Affordable Rent for Very Low lncome Households is the product of 30% times 50% of the area median income adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and Safety Code Section 50053(bX2). a Affordable Rent for Lower lncome Households is the product of 30o/o times 60% of the area median income adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and Safety Code Section a Affordable Rent for Moderate lncome Households is the product of 30% times 11Oo/o of the area median income adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and Safetv Code Section a Maximum Rents are calculated based on household sizes "appropriate to the unit" of 1 person for a studio unit; 2 persons for a one-bedroom apartment; 3 persons for a two bedroom apartment; 4 persons for a three bedroom apartment; 5 persons for a four bedroom apartment (Health & Safety Code Section 50052. Maximum Est. Utilitv Net Maximum Rent for txtremelv Low lncome Households Rent Allowance*Rent s303.75 s(39.00)s264.7s s347.s0 s(3e.00)s308.s0 s391.2s s(s0.00)534L.2s Maximum Monthlv Rent for a Three-Bedroom Apartment s433.7s s(s8.00)s37s.7s 2014 Maximum lncome Levels Extremely Low (S 30% of AMI) Very-Low lncome (S 50% of AMI) Lower lncome - (< 80% of AMI) Moderate Income - (S 120% AMI) One Two Person Person $12,150 $13,900 $20,300 $23,200 $32,450 $37,050 $48,650 $55,600 Three Four Five Six Person Person Person Person $15,650 $17,350 $18,750 $20,150 $26,100 $28,950 $31,300 $33,600 $41,700 $46,300 $50,050 $53,750 $62,550 $69,500 $75,050 $80,600 56 Maximum Est. Utilitv Net Maximum Rent for Verv Low lncome Households Rent Allowance*Rent ssoT.so s(3e.oo)S+os.so Maximum Monthlv Rent for a One-Bedroom Apartment ssso.oo s(3e.00)ss41.oo Maximum Monthlv Rent for a Two-Bedroom Apartment s6s2.so s(s0.00)s602.s0 5723.7s 5(s8.oo)s66s.7s Maximum Monthly Rent for a Four-Bedroom Apartment s782.s0 s(68.00)s714.s0 I Maximum Monthly Rent for a Four-Bedroorn npartment I S¿os.zs I ji{qq.oq) | S+oo.zs I . The utility allowance shown above is for a mid-rise (3-5 stories) project constructed in 2O11 or later. Exhibit .C'TO REGUI-ATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICTIONS Maximum Est. Utility Net Maximum Rent for Lower lncome Households Rent Allowance*Rent Maximum Monthlv Rent for a Studio Apartment s608.7s s(3s.00)Ssog.zs s6es.oo s(3s.oo)s6s6.0o s782.s0 s(so.oo)5732.s0 Maximum Monthlv Rent for a Three-Bedroom Apartment s868.7s s(s8.00)s810.7s Maximum Monthly Rent for a Four-Bedroom Apartment s938.7s s(68.00)s87o.7s Maximum Est. Utilitv Net Maximum Rentfor Moderate lncome llouseholds Rent Allowance*Rent s1,11s.00 s(3s.oo)S1,076.oo Maximum Monthlv Rentfor a One-Bedroom Apartment 5L,27s.oo (5gs.oo)S1,236.00 Maximum Monthly Rent for a Two-Bedroom Apa,rtment S1,433.75 s(so.oo)S1,383.75 S1,592.50 s(s8.oo)$t,s3+.so S1,72o.oo s(68.00)51,652.00 57 Gity of Fresno as Housing Successor to the Redevelopment Agency of the City of Fresno Redevelopment Agency Multi.Familv Housinq Proqram CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE Period Covered from to The undersigned, APEC lnternational, LLC., a California limited liability company (the "Owner"), has read and is thoroughly familiar with the provisions of the Owner Participation Agreement ("OPA") and documents referred to therein executed by Owner and the Redevelopment Agency of the City of Fresno ("Agency") including but not limited to the Regulatory Agreement and Declaration of Covenants and Restrictions ("Regulatory Agreement"). As of the date of this Certificate, for the period shown above, the following number of Units in the Project are: (i) occupied by tenants satisfying the Low-lncome Requirements (as defined in the Regulatory Agreement) as a principal residence ("Eligible Tenants"), or (ii) currently vacant and being held available for such occupancy and have been so held continuously since the date an Eligible Tenant vacated such Unit: Occuoied Affordable Units Vacant Affordable Units The Owner certifies that the information contained in the Occupancy Summary attached is true and accurate and hereby certifies that (1) a review of the activities of the Owner during such period and of the Owner's performance under the OPA and the documents referred to therein has been made under the supervision of the undersigned, and (2) to the best knowledge of the undersigned, based on the review described in clause (1) hereof, the Owner is not in default under any of the terms and provisions of the above documents (or describe the nature of any default and set forth the measures being taken to remedy such default). lSignature on following page.l 2344 Tulare Street Suite 200 Fresno, CA9372l www.fresnorda.com 559.62r.7628 58 Number of Units by Bedrooms (see table for Number of Units by Income Level of Tenants (percent of Owner completing this Certificate has relied on the income certification and supporting information supplied by each Applicant in determiníng qualification for occupancy of the Affordable Unit. APEC, lnternational, LLC a California limited liability company By: Name: Eugene Kim Its: Managing Member Date: Date: One Two Penson Percon $12,150 $13,900 $20,300 $23,200 $32,450 $37,050 $48,650 $55,600 Three Four Person Percon $15,ô50 $17,350 $26,100 $28,950 $41,700 $46,300 $62,550 $69,500 Five Six Person Person $18,750 $20,150 $31,300 $33,600 $50,050 $53,750 $75,050 $80,600 59 Maximum Est. Utilitv Net Maximum Rent for Extremelv tow lncome Households Rent Allowance*Rent Maximum Monthly Rent for a Studio Apartment s3o3.7s s(3e.oo)5264.7s Maximum Monthly Rent for a One-Bedroom Apartment s347.s0 s(3e.oo)s308.s0 Maximum Monthlv Rent for a Two-Bedroom Apartment s391.2s s(s0.00)5341..2s Maximum Monthlv Rent for a Three-Bedroom ADartment s433.7s s(s8.00)s37s.7s Maximum Monthly Rent for a Four-Bedroom Apartment s468.7s s(68.00)S4oo.7s Maximum Est. Utility Net Maximum Rentfor Verv Low lncorne Households Rent Allowance*Rent ssoT.so s(3e.00)5468.s0 Maximum Monthlv Rent for a One-Bedroom ADartment ss80.00 s(3e.00)ss41.oo Maximum Monthlv Rent for a Two-Bedroom Aoaftment s6s2.s0 s(s0.00)s602.s0 Maximum Monthlv Rent for a Three-Bedroom Aþartment 5723.7s s(s8.00)s66s.7s Maximum Monthlv Rent for a Four-Bedroorn Apartment s782.so s(68.00)S7i_4.s0 Maximum Est. Utility Net Maximum Rent for Lower lncome Households Rent Allowance*Rent Maximum Monthly Rent for a Studio Apartment s608.7s s(3s.oo)ss69.7s s6ss.oo s(3s.oo)s6s6.00 Maximum Monthlv Rent for a Two-Bedroom Apartment S7s2.so s(s0.00)s732.s0 Maximum Monthlv Rent for a Three-Bedroom Apartment S868.7s s(s8.00)s810.7s Maximum Monthfv Rent for a Four-Bedroom Apartment S938.7s s(68.00)s870.7s 60 EXHIBIT ''G'' AGENCY PROMISSORY NOTE DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for Cancellation. $1,900,000.00 Fresno, California For value received, the undersigned, APEC lnternational, LLC., a California limited liability company ("Borrower"), promises to pay to the order of the City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno ("Lender" or "Beneficiary"), the sum of One Million Nine Hundred Thousand Dollars ($1,900,000.00) together with interest on unpaid principal at the rate of 1o/o pêt annum, with such interest accruing as of the Payment Commencement Date, to the extent that such funds are loaned to Borrower, all due and payable as described herein and pursuant to the Owner Participation Agreement. This Promissory Note ("Note") is made and entered into in accordance with the terms of the Amended and Restated Owner Participation Agreement dated f I2014, entered into between Borrower and Lender ("Agreement"). Commencing on May 15th of the year immediately following issuance of the Certificate of Occupancy for the Project (the "Payment Commencement Date"), and continuing on the same date each year thereafter until the date which is fifty five (55) years after the Payment Commencement Date ("Maturity Date"), Borrower shall submit to the Lender an audited project financial statement (covering the previous calendar year) along with Lender's pro rata share of the annual Project Residual Receipts (as defined below) as calculated by Borrower. The actual and final amount of Lender's share of Residual Receipts shall be determined by the Lender upon review of the audited financial statement. "Residual Receipts" are determined on a cash basis and defined as revenue minus the total of approved operating expenses, deferred portion of the developer fees in the development budget, approved debt service, deposits to operating and replacement reserve accounts per contract, and approved related party expenses. Such annual payments shall continue until the Maturity Date at which time the entire remaining unpaid balance of principal together with interest and unpaid penalties or late charges where applicable thereon shall be all due and payable, along with attorney's fees and costs of collection, and without relief from valuation and appraisement laws. Lender's share of Residual Receipts shall be 25%. Any failure to make a payment required hereunder shall constitute a default under this Note. 20 All capitalized terms used in this Note, unless otherwise defined, respective meanings specified in the Agreement. ln addition, as used in following terms will have the following meanings: the the will this have Note, 62 "Business Day" means any day other than Saturday, Sunday, or public holiday or the equivalent for banks generally under the laws of California. Whenever any payment to be made under this Note is stated to be due on a day other than a Business Day, that payment may be made on the next succeeding Business Day. However, if the extension would cause the payment to be made in a new calendar month, that payment will be made on the preceding Business Day. This Note, and any extensions or renewals hereof, is secured by a Deed of Trust with Assignment of Rents on real estate in Fresno County, California, that provides for acceleration upon stated events, dated as of the same date as this Note, and executed in favor of and delivered to the Lender ("Deed of Trust"), insured by First American Title Company as no worse than an ALTA or CLTA second position lien. Time is of the essence with respect to all terms of this Note. lt will be a default under this Note if Borrower defaults under the Agreement, any other Loan Documents (as defined in the Agreement), or if Borrower fails to pay when due any sum payable under this Note or under any other obligation secured by a Deed of Trust or other lien senior to the Deed of Trust which secures this Note after the expiration of the applicable cure period. Borrower shall promptly inform Lender of any new or additional financing or funding, and Borrower shall provide Lender copies of all agreements with any and all Funding Sources for this Project, in accordance with the terms set forth in Section 2.2 of the Agreement. ln the event of a default by Borrower, the Borrower shall pay a late charge equal to 2o/o of any outstanding payment. All payments collected shall be applied first to payment of any costs, fees or other charges due under this Note or any other Loan Documents then to the interest and then to principal balance. On the occurrence of a default or on the occurrence of any other event that under the terms of the Agreement or Loan Documents gives rise to the right to accelerate the balance of the indebtedness, then, at the option of Lender, this Note or any notes or other instruments that may be taken in renewal or extension of all or any part of the indebtedness will immediately become due and payable without any further presentment, demand, protest, or notice of any kind. The indebtedness evidenced by this Note may, at the option of the Borrower, be prepaid in whole or in part, at any time, without penalty. Lender will apply all the prepayments first to the payment of any costs, fees, late charges, or other charges due under this Note, the Agreement, or other Loan Documents, and then to the interest and then to the principal balance. Upon full payment and satisfaction of all amounts due under this Note, Lender shall notify the Trustee under the Deed of Trust that all obligations due the Note have been satisfied, and shall deliver to the Trustee all documents required for the full reconveyance of the Deed of Trust, the termination of the Regulatory Agreement, and cancellation of the Note. 63 All payments are payable in lav'¡ful money of the United States of America at any place that Lender or the legal holders of this Note may, from time to time, in writing designate, and in the absence of that designation, then to Lender at its address of record provided in the Agreement. Borrower agrees to pay all costs including, without limitation, attorney fees, incurred by the holder of this Note in enforcing payment, whether or not suit is filed, and including, without limitation, all costs, attorney fees, and expenses incurred by the holder of this Note in connection with any bankruptcy, reorganization, arrangement, or other similar proceedings involving the undersigned that in any way affects the exercise by the holder of this Note of its rights and remedies under this Note. All costs incurred by the holder of this Note in any action undertaken to obtain relief from the stay of bankruptcy statutes are specifically included in those costs and expenses to be paid by Borrower. Borrower will pay to Lender all attorney fees and other costs referred to in this paragraph on demand. Any notice, demand, or request relating to any matter set forth herein shall be in writing and shall be given as provided in the Agreement. No delay or omission of Lender in exercising any right or power arising in connection with any default will be construed as a waiver or as an acquiescence, nor will any single or partial exercise preclude any further exercise. Lender may waive any of the conditions in this Note and no waiver will be deemed to be a waiver of Lender's rights under this Note, but rather will be deemed to have been made in pursuance of this Note and not in modification. No waiver of any default will be construed to be a waiver of or acquiescence in or consent to any preceding or subsequent default. The Deed of Trust provides as follows: DUE ON SALE-CONSENT BY BENEFICIARY. Beneficiary may, at its option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without the Beneficiary's prior written consent, of all or any part of the Property, or any interest in the Property. A "sale or transfer" means the conveyance of the Property or any right, title or interest therein; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Property, or by any other method of conveyance of Property interest. lf any Trustor is a corporation, partnership or limited liability company, transfer also includes any cumulative change in ownership of more than fifty percent (50%) of the voting stock, partnership interests or limited liability company interests, as the case may be, of Trustor, other than a transfer to the managing member of Trustor or an affiliate of the managing member. However, this option shall not be exercised by Beneficiary if such exercise is prohibited by applicable law. 64 Lender may transfer this Note and deliver to the transferee all or any part of the Property then held by it as security under this Note, and the transferee will then become vested with all the powers and rights given to Lender; and Lender will then be forever relieved from any liability or responsibility in the matter, but Lender will retain all rights and powers given by this Note with respect to Property not transferred. lf any one or more of the provisions in this Note is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired. This Note will be binding on and inure to the benefit of Borrower, Lender, and their respective successors and assigns. Borrower agrees that this Note will be deemed to have been made under and will be governed by the laws of California in all respects, including matters of construction, validity, and performance, and that none of its terms or provisions may be waived, altered, modified, or amended except as Lender may consent to in a writing duly signed by Lender or its authorized agents. The Loan shall be nonrecourse to the Borrower and all constituent members of the Borrower. The parties will execute such other and further documents, and will take any other steps, necessary, helpful, or appropriate to carry out the provisions of this Note. [Signatures on following page.] 65 WITNESS \¡úHEREOF, Borrcwer has executed this Note on the date first written above. Borrower APEC International, LLC, a California limited liability company Name: Eugene Kim Its: Managing Member 66 EXHIBIT "H" DEED OF TRUST Recording requested by, and when recorded mail to: City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno 2600 Fresno Street Fresno, CA.93721 Attention: City Manager INSTRUCTIONS TO COUNTY RECORDER: lndex this instrument as (i) a Deed of Trust, and (ii) a Fixture Filing Space above for Recorder's Use DEED OF TRUST AND ASSIGNMENT OF RENTS This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is entered into between APEC lnternational, LLC., a California limited liability company whose principal executive office is at 770 South lrolo Street, Los Angeles, CA 90005 (the "Trustor"), in favor of [Title Company and addressl (the "Trustee"), for the benefit of the CITY OF FRESNO lN ITS CAPACITY AS THE HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO (the "Beneficiary"), with offices at 2600 Fresno St., Fresno, California 93721. THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE TRUSTEE, in trust, with the power of sale, the real property in the City of Fresno, Fresno County, California, more particularly described in Exhibit A attached hereto and made part hereof by reference (the "Property"), together with: (i) All tenements, hereditaments and appurtenances of or to the Property, including without limitation all easements and rights used in connection therewith or as a means of access thereto, all right, title and interest of the Trustor, now owned or hereafter acquired, in any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys, strips and other areas of land adjacent to or used in connection with the Property; (¡i) All oil and gas or other mineral rights in or pertaining to the Property and all royalty, leasehold and other rights of the Trustor pertaining thereto; 67 (iii) All water rights pertaining to the Property and shares of stock evidencing the same, and all deposits made with or other security given to utility companies by the Trustor with respect to the Property; (iv) The rents, issues and profits thereof, subject, however, to the right, power and authority of Trustor to collect and apply such rents, issues and profits and set forth in this Deed of Trust; (v) All buildings and improvements of every kind and description now or hereafter erected or placed on the Property, and all fixtures thereon, including, but not limited to, all gas and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment, laundry equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bath tubs, sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantels, cabinets, refrigeration plant and refrigerators, whether mechanical or othenruise, cooking apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be deemed permanently affixed to and a part of the realty; (vi) All building materials and equipment now or hereafter delivered to the Property and intended to be installed thereon; and (vii) All articles of personal property owned by the Trustor and now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, and all other goods, chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the ones herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are or shall be attached to the building or buildings in any manner; subject, however, to (and only to) any purchase money security interests in such personal property. Said real property and personal property described above, together with appurtenances, are referred to collectively in this Deed of Trust as the "Collateral" FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS: (a) Payment to the Beneficiary of an indebtedness in the principal amount of One Million Nine Hundred Thousand Dollars ($1,900,000.00), evidenced by a promissory note executed by the Trustor and payable to the order of the Beneficiary, bearing the same date as this Deed of Trust, and any and all modifications, extensions or renewals thereof or substitutions therefor (the "Note"), and performance and satisfaction of each and all other obligations of the Trustor under the Note; 68 (b) Performance of every obligation or Trustor in this Deed of Trust, the Note, the Owner Participation Agreement between Beneficiary and Trustor related to the Property (the "Owner Participation Agreement") contemplating the improvement of the "Project" (as that term is defined in the Owner Participation Agreement); and (c) Payment of all sums, if any, and interest thereon that may hereafter be loaned or advanced by the Beneficiary to or for the benefit of the Trustor or to its successors, transferees and assigns, made to the Trustor while the Trustor is the owner of record of fee title to the Property, or any portion thereof, or to the successors, transferees or assigns of the Trustor while they are the owners of record of such fee title, and evidenced by one or more notes or written instruments which recite that they are secured by this Deed of Trust. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR COVENANTS AND AGREES AS FOLLOWS: 1. The Trustor shall not use or permit the use of any of the Collateral for any purpose other than the use for which it was intended at the time this Deed of Trust was executed, as provided in the Owner Participation Agreement. 2. Upon default under this Deed of Trust or the Note (following delivery of notice and expiration of the cure period, if any, provided therein), the Beneficiary, at its option, may declare the whole of the obligations and sums secured hereby to be immediately due and payable. 3. The person(s) or entity(ies) who have executed this Deed of Trust are fully authorized, and have obtained any and all written authorizations, approvals or consents necessary, to bind the Trustor to this Deed of Trust. 4. All rents, profits and income from the Collateral covered by this Deed of Trust are hereby assigned to the Beneficiary for the purpose of discharging the obligations hereby secured. However, the Trustor shall be permitted, so long as no default exists hereunder or under the Note, to collect such rents, profits and income for use consistent with the provisions of the Owner Participation Agreement. 5. Upon default hereunder or under the Note (following delivery of notice and expiration of the cure period, if any, provided herein or therein), for the purpose of protecting its interests hereunder, the Beneficiary will be entitled to the appointment by a court having jurisdiction, without further notice and without regard to adequacy of any security for the indebtedness secured hereby, of a receiver to take possession of and protect the Collateral described herein and operate same and collect the rents, profits and income therefrom. The entering upon and taking possession of the Property or other Collateral by such receiver, the collection of such rents, profits and income and the application thereof shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 69 6. The Trustor, at its sole cost and expense, shall provide and maintain on the entire Property, including all buildings and improvements thereon: (i) a policy of broad-form builder's risk insurance sufficient to cover 100 percent of the replacement value of all buildings and improvements on the Property including; without limitation, labor and materials in place or to be used as part of the permanent construction (including, without limitation, surplus miscellaneous materials and supplies incidental to the work, and scaffolding, staging, towers, forms and equipment not owned or rented by the Beneficiary, the cost of which is not included in the cost of work), insuring against loss or damage by fire, extended coverage perils and such other hazards, casualties or other contingencies as from time to time may be reasonably required by the Beneficiary; (2) a policy of commercial general liability insurance that includes contractual, products and completed operations coverages, bodily injury and property damage liability insurance with combined single limits of not less than $1,000,000 per occurrence; and (3) such other insurance as may be reasonably required by the Beneficiary, in each case in such amounts, in such manner and with such companies as the Beneficiary and Trustor may reasonably approve. The foregoing minimum insurance coverage limits shall be subject to reasonable adjustment from time to time by the Beneficiary. Each such policy shall be endorsed with a standard mortgage clause with loss payable to the Beneficiary and the Trustor, and shall provide that the policy shall not be canceled or materially changed without at least thirty (30) days' prior notice to the Beneficiary. Upon request by the Beneficiary, the Trustor immediately shall deposit with the Beneficiary certificates evidencing such policies. 7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes and assessments affecting the Collateral, including assessments on appurtenant water stock; (ii) when due, all encumbrances, charges and liens, with interest, on the Collateral or any part thereof which appear to be prior or superior hereto; and (iii) all costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred in connection with the trusts created under this Deed of Trust. 8. The Trustor shall: (i) keep the Collateral in good condition and repair and not remove or demolish any buildings on the Property; to the extent insurance or condemnation proceeds are available; (ii) complete or restore promptly and in good and workmanlike manner the buildings and improvements and any other building or improvement which may be constructed, damaged or destroyed thereon; (iii) pay when due all claims for labor performed and materials furnished therefore; (iv) comply in all material respects with all laws affecting the Collateral or requiring any alterations or improvements to be made thereon; (v) not commit or permit waste of or on the Collateral; and (vi) not commit, suffer or permit any act upon the Property in violation of law and/or any covenants, conditions or restrictions affecting the Collateral. 9. The Trustor shall appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and shall pay all costs and expenses, including cost of evidence of title 70 and reasonable attorneys' fees, in any such action or proceeding in which the Beneficiary or the Trustee may appear, or in any suit brought by the Beneficiary to foreclose this Deed of Trust. 10. Should the Trustor fail to make any payment or do any act as herein provided, then the Beneficiary or the Trustee, without obligation to do so, and following notice to or demand on the Trustor, and without releasing the Trustor from any obligation hereof: (i) may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, the Beneficiary or the Trustee being authorized to enter on the Property for such purposes; (ii) may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee; (iii) may pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto (except for the deeds of trust, encumbrances and liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as such terms are defined below); and (iv) in exercising any such powers, may pay necessary expenses, employ legal counsel and pay such counsel's reasonable fees. All such amounts paid by the Beneficiary or the Trustee hereunder shall be added to the obligations secured by this Deed of Trust. The term "Construction/Permanent Financing Loan" means, collectively, the construction financing and take-out financing, and any refinancing or replacement of that financing from time to time, to be provided by a commercial or other lender(s); provided, however, that (¡) before entering into any Construction/Permanent Financing Loan, the Trustor shall give the Beneficiary notice of the Construction/Permanent Financing Loan and copies of the loan agreement and all other loan documents evidencing the Construction/Permanent Financing Loan; (¡i) the funds disbursed from each Construction/Permanent Financing Loan shall be used only for costs and charges associated with the loan and for the operation, maintenance and/or improvement of the Project or the Property as provided in the Owner Participation Agreement or to refinance existing indebtedness; (iii) the interest on each Construction/Permanent Financing Loan shall be at a reasonable rate based on all the facts and circumstances; and (iv) the combined amounts of all Construction/Permanent Financing Loans or any re- financing thereof and the Note secured by this Deed of Trust shall not exceed one hundred percent (1OOo/o) of the fair market value of the Property as improved by the Project under the Owner Participation Agreement (such value to be determined bya qualified appraiser reasonably acceptable to Trustor and Beneficiary. Notwithstanding any limitatíons set forth above, in the event of any subsequent refinancing of a Construction/Permanent Financing Loan, Trustor may use funds from any refinancing that are in excess of the original principal of the initial Construction/Permanent Financing Loan to compensate Trustor for any negative cash flow of the Project or to fund other projects by Trustor or a related entity in the Urban Core of the City of Fresno. (By way of illustration only, and without limiting the foregoing, if the initial Construction/Permanent Financing Loan for the Project is $4,000,000 and, while satisfying the rate and loan-to-value limits set forth in 71 subparagraphs (iii) and (iv), Trustor subsequently obtains refinancing in the amount of $5,000,000, Trustor may use the additional $1,000,000 in excess of the original Construction/Permanent Financing Loan to compensate Trustor for negative cash flow or for another project in the Urban Core without making any prepayment on the Note secured by this Deed of Trust.) 11. The Beneficiary shall have the right, but not the obligation, to pay when due fire or other insurance premiums required hereunder if the Trustor fails to make such payments. All such amounts paid by the Beneficiary hereunder shall be added to the obligations secured by this Deed of Trust. 12. The Trustor shall pay immediately upon demand all sums so expended by the Beneficiary or the Trustee under this Deed of Trust, with interest from date of expenditure at the legal rate. 13. lf the Trustor fails to pay any amount required by the Note or this Deed of Trust when due and payable, or fails to perform all other covenants, conditions and agreements of the Note, this Deed of Trust or the Owner Participation Agreement (following delivery of notice and expiration of the cure period, if any, provided therein), the amount of the Note, including unpaid principal and late charges, and all other charges and amounts required by the Note and this Deed of Trust shall, at the option of the Beneficiary, become immediately due and payable. This shall be in addition to and without limitation on any other remedy or right available to the Beneficiary for such failure. 14. The Trustor shall not voluntarily create or permit to be created against the Collateral any lien or liens except as specifically permitted by this Deed of Trust or otherwise authorized by the Beneficiary. The Trustor shall keep and maintain the Collateral free from the claims of all persons supplying labor or materials who will enter into the construction, rehabilitation, renovation or repair of any and all buildings or improvements now existing or to be erected on the Property. 15. By accepting payment of any sum secured by this Deed of Trust after its due date or by accepting partial payment of any such sum, the Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for the Trustor's failure to pay. 16. lf the Trustor, without the prior written consent of the Beneficiary: (i) agrees to or actually sells, conveys, transfers or disposes of the Collateral or any interest therein or portion thereof, or (ii) assigns or delegates any right or obligation under the Owner Participation Agreement, the Note or this Deed of Trust, then all amounts secured by this Deed of Trust may be declared immediately due and payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold its consent to any such transaction. The Beneficiary's consent to one transaction of this type shall not be a waiver of the right to require consent to future or successive transactions. 72 DUE ON SALE-CONSENT BY BENEFICIARY. Beneficiary may, at its option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without the Beneficiary's prior written consent, of all or any part of the Property, or any interest in the Property. A "sale or transfer" means the conveyance of the Property or any right, title or interest therein; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Property, or by any other method of conveyance of Property interest. lf any Trustor is a corporation, partnership or limited liability company, transfer also includes any change in ownership of more than fifty percent (50%) of the voting stock, partnership interests or limited liability company interests, as the case may be, of Trustor, other than a transfer to the managing member of Trustor or an affiliate of the managing member. However, this option shall not be exercised by Beneficiary if such exercise is prohibited by applicable law. 17. As further security for the full and complete performance of each and every obligation, covenant, agreement and duty of the Trustor contained herein or in the Note, the Trustor hereby grants and conveys to the Beneficiary a security interest in and lien on all of the Collateral. This Deed of Trust shall serve as a security agreement and financing statement created pursuant to the California Commercial Code, and the Beneficiary will have and may exercise all rights, remedies and powers of a secured party under the California Commercial Code. Further, this Deed of Trust is filed as a fixture filing pursuant to the California Commercial Code and other applicable law, and covers goods which are or are to become fixtures. 18. Should the Property, the buildings or improvements thereon, or any part of any of them be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire or earthquake or in any other manner, the Beneficiary will be entitled, subject to the rights of the holder of any senior deed of trust securing a Construction/Permanent Financing Loan, to all of the Trustor's interest in compensation, awards and other payments or relief therefor; and, following the occurrence of a default as defined in the Note, the Beneficiary shall be entitled, jointly with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in its own name, any action or proceeding, or to make any compromise or settlement, in connection with such taking or damage. All such compensation, awards, damages, rights of action and proceeds, including the proceeds of any fire and other insurance affecting the Property or the buildings or improvements thereon, are hereby assigned to the Beneficiary, subject to the rights of the holder of any senior deed of trust securing a Construction/Permanent Financing Loan. After deducting therefrom all its expenses, including reasonable attorneys' fees, and if there has not occurred a default under the 73 Note, the Beneficiary shall apply all such proceeds to restoring the Property or the buildings or improvements thereon, or if there has been such default, or if the Trustor determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the amount due under the Note and any amounts due under this Deed of Trust. Any balance of such proceeds still remaining shall be disbursed by the Beneficiary to the Trustor. 19. lf the Trustor fails to perform any covenant or agreement in this Deed of Trust or the Owner Participation Agreement, or if a default occurs under the Note, the Beneficiary may declare all obligations and sums secured hereby immediately due and payable by delivery to the Trustee of written declaration of default and demand for sale and written notice of default and of election to cause the Collateral to be sold, which notice the Trustee shall cause to be duly filed for record, and the Beneficiary may foreclose this Deed of Trust; provided, however that the Trustor shall not be deemed to be in default hereunder for failure to make any payment when due or for failure to perform any other covenant or agreement contained herein until thirty (30) days after written notice of such failure is given to the Trustor and Trustor is afforded a reasonable opportunity to cure the default. The Beneficiary shall also deposit with the Trustee this Deed of Trust, the Note and all other documents evidencing the obligations or sums secured hereby. 20. After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of sale having been given as then required by law, the Trustee, without demand on the Trustor, shall sell the Property at the time and place fixed by the Trustee in the notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. The Trustee may postpone sale of all or any portion of the Property by public announcement at the time and place of sale, and from time to time thereafter may further postpone the sale by public announcement at the time fixed by the preceding postponement. The Trustee shall deliver to the purchaser its deed conveying fee titleto the Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of the sale to payment of: (i) the expenses of the sale, together with the reasonable expenses of the trust created by this Deed of Trust, including reasonable Trustee's fees and attorneys' fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (ii) the cost of any search and/or other evidence of title procedure in connection with the sale and of revenue stamps on the Trustee's deed; (iii) all sums expended under the terms hereof not then repaid, with accrued interest at the legal rate; all other sums then secured hereby; and (v) the remainder, if any, to the person or persons legally entitled thereto. 21. The Beneficiary may from time to time substitute a successor or successors to the Trustee named herein or acting hereunder to execute the trusts under this Deed of Trust. Upon such appointment, and without conveyance to the 74 successor trustee, the latter shall be vested with all title, powers and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by the Beneficiary, containing reference to this Deed of Trust and its place of record, which instrument, when duly recorded in Fresno County, California, shall be conclusive proof of proper appointment of the successor trustee. 22. Upon written request of the Beneficiary stating that all obligations secured hereby have been satisfied and all sums secured hereby have been paid, and upon surrender of this Deed of Trust, the Regulatory Agreement, and the Note to the Trustee for cancellation, termination, and retention, and upon payment of its fees, the Trustee shall reconvey, without warranty, the Collateral then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto." 23. The trusts created by this Deed of Trust are irrevocable by the Trustor. 24. This Deed of Trust applies to, inures to the benefit of, and binds of the Trustor, the Beneficiary and the Trustee and their respective administrators, executors, officers, directors, transferees, successors and assigns. The term "Beneficiary" shall include not only the original Beneficiary hereunder but also any future owner and holder, including pledges, of the Note secured hereby. ln this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular includes the plural. 25. ln addition to and without limitation on any other rights or remedies of the Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action or proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the Trustor shall pay all costs and expenses incurred by the Trustee or the Beneficiary in connection with such action or proceeding, including legal expenses and reasonable attorneys'fees and court costs. 26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which the Trustor, the Beneficiary or the Trustee is a party, unless brought by the Trustee. 27. The Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to it at 770 South lrolo Street, Suite 1000, Los Angeles, CA 90005. 28. The Trustor shall cause a copy of each deed of trust securing a Construction/ Permanent Financing Loan to be provided to the Beneficiary immediately upon its recordation, so that the Beneficiary may prepare and record a request for 75 not¡ce of default and notice of sale thereunder pursuant to California Civil Code Section 2924b. 29. PROVIDED THAT NO NOTICE OF DEFAULT HEREUNDER THEN APPEARS OF RECORD AND SUBJECT TO THE CONDITIONS IN SECTION 10 ABOVE AND/OR IN THE OWNER PARTICIPATION AGREEMENT, THIS DEED OF TRUST SHALL BE SUBORDINATE AND SUBJECT TO ANY DEED OR DEEDS OF TRUST SECURING A CONSTRUCTION/PERMANENT FINANCING LOAN. BENEFICIARY SHALL, UPON REQUEST OF TRUSTOR, EXECUTE SUCH SUBORDINATION AGREEMENT OR OTHER DOCUMENTATION REASONABLY NECESSARY TO SUBORIDINATE THE LIEN AND CHARGE OF THIS DEED OF TRUST TO LIEN OF ANY DEED OR DEEDS OF TRUST SECURING A CONSTRUCTION/PERMANENT FINANCING LOAN, AS PROVIDED IN THE OWNER PARTICIPATION AGREEMENT. 30. This Deed of Trust shall be interpreted and enforced, and the rights and duties (both procedural and substantive) of the parties hereunder shall be determined, according to California law. 31. Capitalized terms not otherwise defined herein shall have the meanings given them in the Owner Participation Agreement or the Note. lN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set forth above. TRUSTOR: PEC International, LLC., a California limited liability company By: Name: Eugene Kim Its: Managing Member Attachment: ExhibitA: Legal Description of Property 76 ACKNOWLEDGMENTS STATE OF CALTFORNTA ) ) ss. couNTY oF FRESNO ) On before me,Notary Public, withinpersonally appeared instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (sEAL) 77 EXHIBIT A LEGAL DESCRIPTION THE I.AND DESCRIBED HEREIN IS SITUATED IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Lots 1,2, 3, 4, 5 and 6 in Block 63 of the Town (now City) of Fresno, according to the map thereof recorded June 8, 1876, in Book 1, Page 2 of Maps, Fresno County Records. APN: 466-214-01 78 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-594 Agenda Date:11/20/2014 Agenda #: REPORT TO THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO AND THE FRESNO REVITALIZATION CORPORATION DATE:November 20, 2014 FROM:MARLENE MURPHEY, Executive Director BY:ENRIQUE MENDEZ, Project Manager SUBJECT: Approve Purchase and Sale Agreement between the Successor Agency to the Redevelopment Agency of the City of Fresno and APEC International, LLC., for the Sale of Certain Former Redevelopment Agency Property located near the northwest corner of Fresno and H Streets (APN 466-214-17T) within the City of Fresno (Successor Agency Action) EXECUTIVE SUMMARY The Agency staff recommends approval of a purchase and sale agreement with APEC International, LLC for the sale of one parcel totaling approximately 1.36 acres near the northeast corner of Fresno and H Streets (apn 466-214-17T). BACKGROUND The Successor Agency received a Letter of Intent to Purchase from APEC International,LLC who propose to purchase the parcel in connection with the redevelopment of the Hotel Fresno site.APEC proposes to develop a 70 unit multi-family housing project and parking structure. A third party certified MAI appraiser valued the Agency’s property at $710,000 (per appraisal dated August 13th,2014).The property is a large irregular shaped parcel with two detached irregular shaped pieces across the street from,but part of,the larger parcel.The combination of all three pieces contains 1.36 acres or 59,242 SF. APEC International is offering to purchase the entire parcel in as-is condition for full appraised value. The Purchase and Sale Agreement (PSA)is subject to California Health and Safety Code section(s) relating to redevelopment and property disposition. City of Fresno Printed on 12/16/2022Page 1 of 2 powered by Legistar™ File #:ID#14-594 Agenda Date:11/20/2014 Agenda #: ENVIRONMENTAL FINDING This is not a project under CEQA. Attachments: Parcel Location Map Purchase and Sale Agreement City of Fresno Printed on 12/16/2022Page 2 of 2 powered by Legistar™ 1 ______________________________________________________________ REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS _______________________________________________________________ THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body, corporate and politic (“Seller” or “Successor Agency”), and APEC INTERNATIONAL, LLC. (“Buyer”), enter into this Real Property Purchase and Sale Agreement and Joint Escrow Instructions (the “Agreement”), effective as of the date that the Buyer has executed it and the Oversight Board has approved it. RECITALS A.Successor Agency owns fee title to that certain real property located in Fresno, California described as Parcels A, B, and C in Exhibit-A attached hereto (the “Property”). B.The Property is subject to a reservation of a right of way easement which would allow the City of Fresno to alter the intersection as shown in Exhibit-A. C.The former Redevelopment Agency was responsible for implementing the redevelopment plan (the “Plan”) governing the land area identified as the Central Business District Redevelopment Plan Area (the “Project Area”), in accordance with the California Community Redevelopment Law (Health and Safety Code Sections 33000, et. seq.; hereafter the “CRL”). The Plan and the CRL authorize the Agency to purchase property for redevelopment purposes. D.On January 26, 2012, the City Council adopted Resolution No. 2012-12 electing to serve as the Successor Agency to the Redevelopment Agency of the City of Fresno (“Successor Agency”). Pursuant to Health & Safety Code Section 34181(a) the Oversight Board (“Oversight Board”) shall direct the Successor Agency to dispose of certain Property purchased by the former redevelopment agency with tax increment funds expeditiously and in a manner aimed at maximizing value. E.The Buyer has agreed to purchase the entire parcel as-is. F.The sale of the Property is contingent upon the approval of the Property Management Plan by the Successor Agency, Oversight Board and Department of Finance. G.The Buyer desires to purchase the Property on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other 2 good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1.Purchase and Sale. Seller will sell the Property to Buyer, and Buyer will purchase the Property from Seller on the terms and conditions set forth in this Agreement. Sale of the Property is subject to compliance with Community Redevelopment Law of the State (California Health and Safety code Sections 33000 et seq), 2.Conditions Precedent. Closing shall be conditioned upon performance of all of obligations in this Agreement and satisfaction of the conditions listed in Sections 2.1, 2.2, and 2.3, provided that Seller may, in Seller’s sole discretion, elect to waive any such condition of Closing. 2.1 Environmental Assessment.The Property is being sold in an “As is” condition. The Buyer may perform a Phase 1 Environmental Site Assessment at Buyer’s cost. Seller shall provide Buyer with any copies of environmental reports pertaining to the Property in Seller’s possession without any warranty as to their accuracy. 2.2 Approval of this Agreement and the Property Management Plan by Successor Agency, Oversight Board, and Department of Finance. 3.Purchase Price. The purchase price for the Property is SEVEN HUNDRED AND TEN THOUSAND DOLLARS ($710,000.00) (“Purchase Price”). The Purchase Price, subject to adjustments provided in this Agreement (if any), will be paid by Buyer in cash or by wire transfer of immediately available funds at the Closing. 4.Seller’s Warranties. Seller represents and warrants that: (a) Seller owns the Property, free and clear of all liens, licenses, claims, encumbrances, easements, leases, encroachments on the Property from adjacent Property, encroachments from the Property onto adjacent Property, and any rights of way, other than those disclosed by the public record; (b) Seller has no knowledge of any pending litigation involving the Property; (c) Seller has no knowledge of any violations of, or notices concerning defects or noncompliance with any code, statute, regulation, ordinance, judicial order, judicial holding, or other applicable law concerning the Property; (d) Seller has no knowledge of any hazardous materials or substances (as now or hereafter defined in any law, regulation, or rule) stored, discharged, or otherwise present in, on, or affecting the Property; (e) Seller has no knowledge of any material defects in the Property; (f) the Property is currently vacant. 3 Seller’s authority to sell the property may be subject to approval of the Oversight Board of the Successor Agency and/or the California State Department of Finance and subject to the timelines set forth in California Health and Safety Code section(s) 34170-34191. The continued accuracy in all respects of Seller's representations and warranties shall be a condition precedent to Buyer's obligation to close. All representations and warranties contained in this Agreement shall be deemed remade as of the date of Closing and shall survive the Closing. If any of the representations and warranties are not correct at the time made or as of the Closing, Buyer may terminate this Agreement and there shall be no further liability on the part of Buyer to Seller. 5.Opening Escrow/Escrow Deposit. Within ten (10) business days after the execution of this Agreement by both parties, the parties will open an escrow (“Escrow”) with Fidelity National Title Company at 7475 N. Palm Ave. Suite 101, Fresno California (“Title Company”), Attention: Bernadette Watson, and Buyer shall deposit into Escrow the sum of SEVEN THOUSAND ONE HUNDRED DOLLARS ($7,100.00) (“Deposit”) to be placed in an interest bearing account. Such deposit is refundable if this agreement is not approved by State Department of Finance. 5.1 Agreement as Joint Escrow Instructions. This Agreement, when signed by Buyer and Seller and deposited into escrow with the Title Company, will be the parties’ joint escrow instructions. Buyer and Seller will sign and deliver any other form instructions the Title Company may require that are consistent with this Agreement. 5.2 Deposits into Escrow. Buyer and Seller will deposit all instruments, documents, money, and other items into escrow with the Title Company that (i) this Agreement identifies or (ii) the Title Company may require that are consistent with the terms and purposes of this Agreement, and necessary to Closing. Within thirty (30) days after the Oversight Board and the Successor Agency Board approve this Agreement, Seller will deposit into the escrow with Title Company, or will conditionally deliver to Buyer, a recordable grant deed duly executed and acknowledged before a notary public, and accompanied by documentation reasonably necessary to establish the authority of any signatory executing such deed on behalf of Seller. 5.3 Title. Seller will convey title of the Property to Buyer free and clear of all title defects, liens, encumbrances, conditions, covenants, restrictions, leases or agreements, except those agreed to in writing by Buyer. 5.4 Title and Closing Costs. Seller will pay any costs of clearing and conveying title in the condition described in Section 5.3. Buyer will pay the cost of a CLTA or ALTA owner’s title policy insuring Buyer’s title in the condition described in 4 Section 5.3. Escrow fees, costs to record the grant deed, etc., shall be split equally between Buyer and Seller. 5.5 Closing. The escrow will be considered closed (“Closing” or “Close” or the “Closing Date”) on the date that the Title Company records the grant deed. The escrow will be in condition to Close when all conditions to Close are satisfied or waived, the Title Company is prepared to issue the title policy described herein, and the Title Company is otherwise able to record the grant deed. Unless extended by the mutual consent of the parties, the escrow and this Agreement shall terminate if Closing does not occur within one hundred and eighty (180) days following final execution of this Agreement (including attestation by the Clerk) (the “Outside Closing Date”). Seller’s Executive Director is authorized to agree to administratively extend this Agreement, as necessary to accommodate satisfaction of conditions precedent. Upon termination of the escrow, the Title Company will return all funds, including the Deposit, and documents to the respective depositor, less any termination fee if applicable, and this Agreement will be of no further effect except as herein provided. Notwithstanding the foregoing, Buyer shall have the right to extend the Outside Closing Date for up to three (3) extension periods of sixty (60) days each by providing written notice to the Seller along with making an additional deposit of $1,000.00 for each extension, such additional deposits to be applicable to the Purchase Price but refundable only in the event of a Seller Default. 5.6 Recordation. At Closing, Title Company shall date the grant deed, and all other undated documents in escrow, with the date of Closing, and the Title Company shall record the grant deed, performance deed of trust and all other documents necessary to the Closing. 5.7 Disbursements. At Closing, Title Company shall disburse the Purchase Price, less Seller’s costs to clear title (placing it in the condition set forth in Section 5.3), prorations, and other costs, if any, to Seller, when Title Company is committed to issue a standard CLTA or ALTA owner’s title insurance policy to Buyer insuring its fee title in the condition set forth in Section 5.3, above, for the Purchase Price or such lesser amount as Buyer may designate. 5.8 Risk of loss. Any loss or damage, to the Property or any improvements on it, before Closing is at Seller’s risk. 5.9 Broker. Neither party engaged a broker for this transaction. 6.Delivery of Possession. Seller shall deliver exclusive possession of the Property at Closing. 5 7.Buyer’s Right to Enter and Inspect the Property. Buyer shall have the right to enter, inspect, and conduct any due diligence tests on the property that Buyer deems advisable. Seller grants Buyer, and/or Buyer's agents, the right, upon 24 hours notice, to enter onto the Property to conduct tests and investigations, if all the following occur: (a) Buyer conducts tests and investigations at its sole cost and expense; (b) the tests and investigations do not unreasonably interfere with Seller's possession. 8.Damage, Destruction, Condemnation. If the improvements on the Property are destroyed or materially damaged or if condemnation proceedings are commenced against the Property between the date of this Agreement and the Closing, Buyer may terminate this Agreement. If Buyer, however, elects to accept the Property, all proceeds of insurance or condemnation awards payable to Seller by reason of the destruction, damage, or condemnation shall be paid or assigned to Buyer; Seller shall also pay to Buyer the amount of any deductible and coinsurance under any policy. In the event of nonmaterial damage to the Property, which damage Seller is unwilling to repair prior to Closing, Buyer shall have the right either to terminate this Agreement or accept the Property in its then existing condition, in which case Buyer shall be entitled to a reduction in the Purchase Price to the extent of the cost of repairing the damage. In the event of condemnation or sale under threat of condemnation of a nonmaterial portion of the Property, the sale will proceed and the purchase price shall be adjusted accordingly. If Buyer elects to terminate this Agreement pursuant to this Section, escrow shall terminate and neither party shall have any further duties or responsibilities under this Agreement. 9.Miscellaneous Provisions. 9.1 Further Assurances. Each party will sign and deliver further documents, or take any further actions required to complete the purchase and sale described herein. 9.2 Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed delivered: (a) on the date of service if served personally on the person to receive the notice, (b) on the date deposited in the U.S. mail, if delivered by depositing the notice or communication in the U. S. mail, postage prepaid, and addressed to the relevant party at the address set forth below, (c) on the date of transmission if delivered by facsimile, to the number provided below, that provides a transmission confirmation showing the date and time transmitted, or (d) on the date of transmission if delivered electronically via email and showing the date and time transmitted. To Seller: SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body 6 corporate and politic Attention: Executive Director 2344 Tulare Street, Suite 200 Fresno, CA 93721 Phone No.: 559.621-7600 Fax No.: 559.498.1870 To Buyer: APEC INTERNATIONAL, LLC Attn: Eugene Kim, President 770 South Irolo Street Los Angeles, CA 90005 Phone No.: 213.738.7389 Fax: 213.384.3847 9.3 Entire Agreement. Each Exhibit referred to in this Agreement is by that reference incorporated into and made a part of this Agreement. This Agreement is the entire agreement between the parties regarding the purchase and sale of the Property, and supersedes all prior discussions, negotiations, commitments or understanding, written or oral. 9.4 Amendment or Cancellation.Buyer and Seller may amend or cancel this Agreement only by mutual written consent of the parties, unless otherwise expressly provided herein. 9.5 Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of each party, and each party’s heirs, successors, assigns, transferees, agents, employees or representatives. The Buyer may assign this agreement and its rights hereunder without the consent of Seller. 9.6 Time of the Essence. Time is of the essence of each term in this Agreement. 9.7 Attorneys' Fees. If any party to this Agreement or the Title Company begins any action, proceeding, or arbitration arising out of this Agreement, then as between Buyer and Seller, the prevailing party shall be entitled to receive from the other party, besides any other relief that may be granted, its reasonable attorneys' fees, costs, and expenses incurred in the action, proceeding, or arbitration. 9.8 Governing Law. This Agreement and the legal relations between the parties shall be governed by and construed according to California law. Venue for the 7 filing of any action to enforce or interpret this Agreement or any rights and duties hereunder shall be in Fresno, California. 9.9 Headings. The section headings in this Agreement are for convenience only. The headings are not part of this Agreement and shall not be used to construe it. 9.10 Waiver. If Buyer or Seller waives a breach of any provision herein, the waiver will not be a continuing waiver. The waiver will not constitute a waiver of any subsequent breach, or a waiver of a breach of any other provision hereof. 9.11 Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of any provision in this Agreement will not affect the other provisions. 9.12 Interpretation. This Agreement is the result of the combined efforts of the parties. If any provision of this Agreement is found ambiguous, the ambiguity will not be resolved by construing this Agreement in favor or against any party, but by construing the terms according to their generally accepted meaning. 9.13 Precedence of documents. If any conflict exists between the body of this Agreement and any Exhibit or Attachment to it, the provisions of the body of this Agreement will control and take precedence over the Exhibit or Attachment. 9.14 Counterparts. This Agreement may be executed in counterparts, each of which when executed and delivered will be deemed an original, and all of which together will constitute one instrument. Facsimile or electronic copy signatures shall be deemed as valid and binding as original signatures. 9.15 Survival. All representations and warranties, indemnifications, and other provisions which, by their nature are intended to continue, shall survive Closing and delivery of the grant deed. 9.16 Seller’s Default and Buyer’s Remedies. If the sale of the Property is not consummated due to Seller’s material default hereunder that is not cured within five (5) business days of Notice from Buyer of Default, then Buyer shall have the right, to elect, as its sole and exclusive remedy, to either (a) terminate this Agreement by written notice to Seller, promptly after which the Deposit shall be returned to Buyer, (b) waive the default and proceed to close the transaction contemplated herein. Notwithstanding anything to the contrary contained herein, Seller shall not be deemed in default unless and until Buyer provides Seller with written notice of such default and Seller fails to cure such default within five (5) business days of its receipt of such written notice. 8 IN WITNESS WHEREOF the Seller and Buyer have signed this Agreement on the dates set forth below. BUYER: APEC INTERNATIONAL, LLC., a California Limited Liability Company By: _______________________________ Eugene Kim, President Dated: ______________________, 2014 SELLER: SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body corporate and politic By: ____________________________ Marlene Murphey, Executive Director Dated: ______________________, 2014 The Successor Agency to the Redevelopment Agency of the City of Fresno has signed this Agreement pursuant to authority granted on_____________, 2014 ATTEST: YVONNE SPENCE, CMC Ex-officio Clerk By_______________________________ Deputy Dated: ______________________, 2014 APPROVED AS TO FORM: DOUGLAS T. SLOAN Ex-officio Attorney By_______________________________ Deputy Dated: ______________________, 2014 Attachments: Exhibit A: Legal Description EXHIBIT "A" LEGAL DESCRIPTION [Include reservation of right of way easement to square off intersection] City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: REPORT TO THE CITY COUNCIL November 20, 2014 FROM:JENNIFER K. CLARK, Director Development and Resource Management Department THROUGH:MIKE SANCHEZ, Assistant Director Development and Resource Management Department BY:NATHAN BOUVET, Planner III Development and Resource Management Department SUBJECT HEARING to consider Plan Amendment Application No. A-13-009, Rezone Application No. R-13-016, and related environmental assessment for the property located on the east side of N. Locan Avenue between the E. Dakota alignment and E. Shields Avenue (Council District 4) Development and Resource Management Department a.Consider the environmental finding of Environmental Assessment No. A-13-009/R-13-016/TM -6067, a finding of a Mitigated Negative Declaration, dated October 17, 2014 b.RESOLUTION - Approving Plan Amendment Application No. A-13-009 amending the 2025 Fresno General Plan and Roosevelt Community Plan planned land use designation for ± 24.71 acres from the agricultural designation in the County of Fresno to the Medium Low Density Residential planned land use designation in the City of Fresno c.BILL - (For introduction and adoption) - Amending the Official Zone Map to reclassify ± 24.71 acres from the AE-20 (Exclusive Twenty-Acre Agricultural, Fresno County) to R-1/cz (Single Family Residential/conditions of zoning, Fresno City)zone district RECOMMENDATION Staff recommends the City Council take the following action: 1.ADOPT the environmental finding of a Mitigated Negative Declaration prepared for Environmental Assessment No. A-13-009/R-13-016/TM-6067 for the purpose of the proposed project. 2.ADOPT RESOLUTION approving Plan Amendment Application No. A-13-009 amending the 2025 Fresno General Plan and Roosevelt Community Plan planned land use designation for ± 24.71 acres from the agricultural designation in the County of Fresno to the Medium Low Density Residential planned land use designation in the City of Fresno. City of Fresno Printed on 12/16/2022Page 1 of 10 powered by Legistar™ File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: 3.ADOPT BILL amending the Official Zone Map reclassify ± 24.71 acres from the AE-20 ( Exclusive Twenty-Acre Agricultural, Fresno County) to R-1/cz (Single Family Residential/conditions of zoning, Fresno City)zone district. EXECUTIVE SUMMARY The proposed project,filed by Dirk Poeschel of Dirk Poeschel Land Development Services,Inc.,on behalf of John Bonadelle,pertains to approximately 24.71 net acres of property located on the east side of North Locan Avenue between the East Dakota alignment and East Shields Avenue.The applicant proposes to amend the 2025 Fresno General Plan and the Roosevelt Community Plan from the agricultural designation in the County of Fresno to the Medium Low Density Residential planned land use designation in the City of Fresno.The applicant also proposes to pre-zone the subject property from the AE-20 (Exclusive Twenty-Acre Agricultural,Fresno County)to R-1/cz (Single Family Residential/conditions of zoning,Fresno City)zone district.These applications have been filed in order to facilitate approval of Vesting Tentative Tract Map No.6067 to subdivide the subject property into a 98-lot single family residential subdivision and installation of related public facilities and infrastructure consistent with the Medium Low Density Residential (2.19-6.0 dwelling unit/acre)planned land use designation and the R-1 (Single Family Residential) zone designation,which allows for one (1)dwelling unit on a lot no less than 6,000 square feet or approximately 7.26 dwelling units per acre.The proposed project also involves an annexation into the City of Fresno,subject to the Standards of Annexation (see attached). The proposed project is supported by staff and was approved by the Council District 4 Plan Implementation Committee on October 13,2014.In addition,on October 15,2014,the Fresno City Planning Commission unanimously recommended approval of Plan Amendment Application No.A-13-009 and Rezone Application No.R-13-016 to the City Council. BACKGROUND Project Information PROJECT -See Executive Summary APPLICANT -Dirk Poeschel, of Dirk Poeschel Land Development Services, Inc., on behalf of John Bonadelle. LOCATION -3450 North Locan Avenue;located on the east side of North Locan Avenue between the East Dakota Alignment and East Shields Avenue (APN: 319-270-09,10, 11, 12) Council District 3, Councilmember Baines SITE SIZE -Approximately 24.71 acres LAND USE -Existing - Agricultural (County Designation) -Proposed - Medium Low Density (City Designation) ZONING -AE-20 (Exclusive Twenty-Acre Agricultural, Fresno County) -R-1/cz (Single Family Residential/conditions of zoning PLAN DESIGNATION AND CONSISTENCY -Pursuant to Table 2 (Planned Land Use and Zone District Consistency Matrix)of the 2025 Fresno General Plan and Section 12-403-B-1 (Zone District Consistency Table)of the Fresno Municipal Code (FMC),the proposed R- 1 zone district classification and the proposed Medium Low Density Residential planned land use designation for City of Fresno Printed on 12/16/2022Page 2 of 10 powered by Legistar™ File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: 1 zone district classification and the proposed Medium Low Density Residential planned land use designation for the subject property may be found consistent. ENVIRONMENTAL FINDING -A Finding of an MND was filed with the Fresno County Clerk’s office on October 17, 2014. PLAN COMMITTEE RECOMMENDATION -The District 4 Plan Implementation Committee made a formal recommendation on October 13,2014.The Committee recommended approval of the plan amendment and rezone applications by a 3-0 vote with two (2) committee members absent. PLANNING COMMISSION -On October 15,2014,the Planning Commission,by a 7-0 vote,recommended that the City Council:(1)Adopt the Mitigated Negative Declaration prepared for Environmental Assessment No.A-13-009/R-13-016/TM-6067;(2) Approve Plan Amendment Application No. A-13-009; and (3) Approve Rezone Application No. R-13-016. STAFF RECOMMENDATION -Recommend that the City Council:(1)Adopt the Mitigated Negative Declaration prepared for Environmental Assessment No.A-13-009/R-13-016/TM-6067;(2)Approve Plan Amendment Application No.A-13-009;and (3) Approve Rezone Application No. R-13-016. BORDERING PROPERTY INFORMATION Planned Land Use Existing Zoning Existing Land Use North Agricultural (County)AE-20 Exclusive Twenty-Acre Agricultural, Fresno County Single Family South Agricultural (County)AE-20 Exclusive Twenty-Acre Agricultural, Fresno County Single Family East Agricultural (County)R-R Rural Residential, Fresno County Single Family West Residential Medium R-1/R-2 Single Family Residential / Low Density Multiple Single Family Project Description Dirk Poeschel of Dirk Poeschel Land Development Services,Inc.,on behalf of John Bonadelle,has filed Plan Amendment Application No.A-13-009 and Rezone Application No.R-13-016 pertaining to 24.71 ±acres of property located on the east side of North Locan Avenue between the East Dakota Alignment and East Shields Avenue.The subject property is bounded on the north and south by existing single family residential developments and or vacant land.Property to the east and west has been developed with single family residential land uses. Plan Amendment Application No.A-13-009 proposes to amend the land use from the agricultural designation in the County of Fresno to the Medium Low Density Residential planned land use designation in the City of Fresno.Rezone Application No.R-13-016 proposes to pre-zone the subject property from AE-20 (Exclusive Twenty-Acre Agricultural,Fresno County)to R-1/cz (Single Family Residential/conditions of zoning,Fresno City)zone district.These applications have been filed in order to facilitate approval of Vesting Tentative Tract Map No.6067 to subdivide the subject property into a 98-lot single family residential subdivision and installation of related public facilities and infrastructure consistent with the Medium Low Density Residential (2.19 -6.0 dwelling unit/acre)planned land use designation.The proposed project also involves an annexation into the City of Fresno, subject to the Standards of Annexation (see attached). City of Fresno Printed on 12/16/2022Page 3 of 10 powered by Legistar™ File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: Density Pursuant to Table 2 (Planned Land Use and Zone District Consistency Matrix)of the 2025 Fresno General Plan and Section 12-403-B-1 (Zone District Consistency Table)of the Fresno Municipal Code (FMC),the proposed R-1 (Single Family Residential)zone district is consistent with the proposed Medium Low Density Residential (2.19 - 6.0 dwelling unit/acre) planned land use. Section 12-211.5-C (Population Density)of the Fresno Municipal Code states that the provisions of Section 12-211.1-A shall apply;whereas,one single family dwelling unit per lot is permitted.The conceptual vesting tract map proposes ninety-eight (98)residential lots averaging approximately 6,100 square feet, including outlots to serve as public open space. Therefore,the development of the subject property at an overall density of approximately 4.12 dwelling units per acre,in a manner which is consistent with the permitted uses and property development standards of the proposed R-1 (Single Family Residential)zone district is determined to be consistent with the proposed Medium Low Density Residential planned land use designation for the subject property.Furthermore,the subject site is currently vacant and therefore,the proposed project does not have the potential to displace existing housing or residents as a result of development thereon. Land Use Plans and Policies 2025 Fresno General Plan and Roosevelt Community Plan The area of the subject property is within the City of Fresno Sphere of Influence.However,the Amendment and Restated Memorandum of Understanding (MOU)between the City of Fresno and the County of Fresno on regional planning allows development of the area inclusive of the subject property subject to certain conditions. The subject property is immediately adjacent to an urbanized area of the City of Fresno that includes infrastructure necessary to serve the proposed development.Should the property have been located away from such urban services,the argument that the project represents leapfrog development and the unnecessary expense of the extension and maintenance of public services would be warranted. This is not the case for the proposed project. The MOU between the City of Fresno and the County of Fresno allows development of the area inclusive of the subject property. The most relevant goals,policies and objectives of the various plans that pertain to the project are discussed below, including, discussion related to future entitlements and annexation: The project includes a proposed amendment to the 2025 Fresno General Plan and Roosevelt Community Plan boundary,land use for ±24.71 acres from the agricultural designation in the County of Fresno to the Medium Low Density Residential planned land use in the City of Fresno.In order to change the planned land use designation of the subject site for the purposes of facilitating future development,the proposed project shall meet the goals,objectives and policies of the 2025 Fresno General Plan and Roosevelt Community Plan by providing a project which introduces single family residential development in a manner which will maintain a pleasant living environment through reservation of adequate living spaces and protecting the integrity of adjacentCity of Fresno Printed on 12/16/2022Page 4 of 10 powered by Legistar™ File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: through reservation of adequate living spaces and protecting the integrity of adjacent neighborhoods.The close proximity to existing and planned single family residential uses will complement and embellish the existing mix of land uses. Objective C-9 of the 2025 Fresno General Plan directs planning for the diversity and quality of residential housing,at locations necessary to provide for adequate and affordable housing opportunities.Housing patterns should support balanced urban growth,and should make efficient use of resources and public facilities.Supporting policy C-9-i recommends Medium Low Density Residential uses shall be designated to preserve those single family residential neighborhoods which were established with moderately large lots,to provide a transition between low and medium density residential areas.New residential projects within this land use category should not be permitted to be developed at a density less than the minimum shown in Table 2 of the General Plan in order to better achieve the goals of the city’s Housing Element.The proposed project meets the intent of this objective. Similarly,the goals of the Roosevelt Community Plan are directed toward the diversity of residential types,densities and locations necessary to achieve the plan concept and accomplish the plan goals to provide for adequate housing opportunities,balanced urban growth,and efficient use of resources and public facilities.Consistent with the 2025 Fresno General Plan,Policy 1-6.2 of the Roosevelt Community Plan states medium low density residential uses shall be designated to preserve those single family residential neighborhoods established with moderate to large sized lots,to provide a transition between low and medium density residential areas and to reduce conflicts between urban and non-urban uses as the predominant designation within the Community’s growth area. Therefore,it is staff’s opinion that the proposed plan amendment and rezone applications are consistent with respective general and community plan objectives and policies and will not conflict with any applicable land use plan,policy or regulation of the City of Fresno.The proposed project is found:(1)To be consistent with the goals,objectives and policies of the applicable 2025 Fresno General Plan and the Roosevelt Community Plan;(2)To be suitable for the type and density of development;(3)To be safe from potential cause or introduction of serious public health problems; and, (4) To not conflict with any public interests in the subject site or adjacent lands. The subject property does fall within the parameter of the Southeast Growth Area (SEGA).While initial planning studies commenced within the vast area,it has since been incorporated into the Fresno General Plan Update and has been renamed the Southeast Development Area (SEDA). However this has not been approved or finalized and reference to SEGA or SEDA is for informational purposes only. Current policy outlined several parameters that needed to be met prior to any new development in the SEGA planning area.The project applicant has completely installed the requisite infrastructure for a single family development,Tract No.5312 and Tract No.5935 to the immediate west. Furthermore,the applicant has requested and secured the necessary “release for development” from the County of Fresno to the City of Fresno.While there remains planning,infrastructure,and financial challenges for the SEGA area,it is the position of the City development could only occur on the subject site and not create a growth precedence. City of Fresno Printed on 12/16/2022Page 5 of 10 powered by Legistar™ File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: Circulation Element Plan Policies and Major Street System Traffic Capacity The subject site is located on the east side of North Locan Avenue.The subject site location is adjacent to low and medium density residential (City of Fresno)and agricultural (County of Fresno)land uses which provide for a pattern of development with the potential to increase the number of average daily vehicle trips. The project specific mitigation measures require that all plan amendments are required to prepare a traffic impact study (TIS).A TIS,dated November 27,2013,was prepared for the proposed development.The study has applied the factors outlined in the Institute of Traffic Engineers (ITE)Trip Generation Manual.The development of ninety-eight (98) single family residential units on the subject site is expected to generate an average of approximately 942 average daily trips (ADT).Of these vehicle trips it is projected that seventy-five (75)will occur during the morning (7 to 9 a.m.)peak hour travel period and ninety-eight (98) will occur during the evening (4 to 6 p.m.) peak hour travel period. The proposed plan amendment will change the land use agricultural to Medium Low Density Residential,which will increase the traffic volume,as noted above.The trips would be directed mainly onto North Locan Avenue.Locan Avenue is an existing two-lane undivided collector adjacent to the proposed property according to the 2025 Fresno General Plan and the Roosevelt Community Plan. The TIS analyzed the Ashlan Avenue/Locan Avenue,Shields Avenue/Temperance Avenue,Olive Avenue/Temperance Avenue and Belmont Avenue/Temperance Intersections which currently exceed their respective level of service (LOS) D threshold, as well as, analyzed the street segments highlighted below. Currently,the intersections of Ashlan Avenue/Locan Avenue,Shields Avenue/Temperance Avenue,Olive Avenue/Temperance Avenue and Belmont Avenue/Temperance Avenue exceed their respective LOS D threshold, which is a significant impact.At present a traffic signal is under construction at the intersection of Ashlan Avenue/Locan Avenue and a traffic signal is currently under design for the intersection of Shields Avenue/Temperance Avenue with an estimated construction date of late 2014.With the completion of the traffic signals at these two intersections the LOS will improve to LOS D or better.To improve the LOS the remaining intersections at LOS D or better,the following will be added as conditions of zoning: a.Shields Avenue and Locan Avenue - install an all-way stop control and add westbound left-turn lane. b.The project shall widen/restripe the intersection of Olive and Temperance Avenues to the following configuration: i.Eastbound - one left-turn lane and one through lane with a shared right-turn lane ii.Westbound - one left-turn lane and one through lane with a shared right-turn lane iii.Northbound - one left-turn lane and one through lane with a shared right-turn lane iv.Southbound - one through lane with a shared left-turn lane and one right-turn lane The LOS for the study segments Shields Avenue between Locan Avenue and Temperance Avenue,Locan Avenue between Shields Avenue and Ashlan Avenue,Temperance Avenue between Shields Avenue and Clinton Avenue, Temperance Avenue between Clinton Avenue and McKinley Avenue,Temperance Avenue between McKinley Avenue and Olive Avenue,and Temperance Avenue between Olive Avenue and Belmont Avenue are LOS D or better during the daily, a.m. peak hour and p.m. peak hour conditions. The Public Works Department,Traffic Engineering Division has reviewed the proposed project and potential traffic related impacts for the plan amendment,rezone,and tract map applications and has determined that the following intersections are currently operating at a substandard LOS in either one or both of the weekday peak hours:Ashlan Avenue at Locan Avenue,Shields Avenue at Temperance Avenue,Olive Avenue at Temperance Avenue,and Belmont Avenue at Temperance Avenue.Adjacent to and near the subject site will be able to accommodate the quantity and kind of traffic which may be potentially generated,subject to several standard requirements.These requirements generally include:(1)public street improvements;(2)installation of a paved pedestrian path or sidewalk;and,(3) payment of applicable impact fees (including,but not limited to,the Traffic Signal Mitigation Impact (TSMI)Fee,Fresno Major Street Impact (FMSI) Fee, and the Regional Transportation Mitigation Fee (RTMF) Fee. The area street plans are the product of careful planning that projects traffic capacity needs based on the densities and intensities of planned land uses anticipated at build-out of the planned area.These streets will provide adequate City of Fresno Printed on 12/16/2022Page 6 of 10 powered by Legistar™ File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: intensities of planned land uses anticipated at build-out of the planned area.These streets will provide adequate access to,and recognize the traffic generating characteristics of,individual properties and,at the same time,afford the community an adequate and efficient circulation system. Public Services Fresno is one of the largest cities in the United States still relying primarily on groundwater for its public water supply. Surface water treatment and distribution has been implemented in the northeastern part of the City,but the city is still subject to an EPA Sole Source Aquifer designation.While the aquifer underlying Fresno typically exceeds a depth of 300 feet and is capacious enough to provide adequate quantities of safe drinking water to the metropolitan area well into the twenty-first century,groundwater degradation,increasingly stringent water quality regulations,and a historic trend of high consumptive use of water on a per capita basis (some 250 gallons per day per capita),have resulted in a general decline in aquifer levels, increased cost to provide potable water, and localized water supply limitations. Fresno has attempted to address these issues through metering and revisions to the City’s Urban Water Management Plan (UWMP).The City Council,on June 19,2014,adopted the Fresno Metropolitan Water Resources Management Plan Update.The overall objective of this update is to supply sufficient and reliable water supplies to meet the demands of existing and future customers through build out of the applicable Fresno General Plan.The study area for the Metro Plan Update includes the existing city limits and City of Fresno Sphere of Influence (SOI)area designated by the 2025 Fresno General Plan. The subject site is located within this area. Implementation of the City’s recommended water supply program contained in this plan will result in a significant shift in the use of available water resources and an increase in diversity in the City’s water supply portfolio which will enhance the City’s overall water supply reliability.Implementation of the Metro Plan Update involves near-term and long-term water projects including,surface water treatment and storage facilities;a raw water intake;groundwater supply,storage and recharge facilities;recycled water treatment and distribution facilities;water distribution pipelines;and increased water conservation measures. The Metro Plan Update was based on an assumed annual population growth rate within the City’s water service area of 1.9 percent based on projections made by the Fresno Council of Governments (Fresno COG).This assumption resulted in a projected water service area population of approximately 692,202 by 2025. The Fresno 2025 General Plan had somewhat different projections,and assumed a higher starting population in 2000 for the Community Plan Area.According to the 2025 General Plan,the population of the City’s Community Plan Area would increase to 790,955 by 2025.However,with the recent economic downturn,growth in the City has slowed and population projections have been revised.The Fresno COG is now projecting a City population of 786,000 by 2035, which reflects a 10-year shift (delay) in the build out of the City’s General Plan SOI. While the City’s population projections have changed,the required components of the Metro Plan Update have not. Implementation of this Metro Plan will achieve water supply sustainability for the entire SOI,which includes the subject site.One of the key policy recommendations of the Metro Plan is that the City adopt a policy that mandated that new development mitigate groundwater impacts.Specifically,it stated that new development be required to fund development of new and sustainable supplies.As a mitigation measure,the project applicant will be required to pay it full impact to local and regional urban services. The proposed project is located within the Southeast Growth Area (SEGA).Although there is currently no water connection fee program for SEGA to support the development of water supply,treatment,conveyance,and recharge facilities,the Director of the Public Works Department,whose department implements the impact fee programs,has made findings and determined that the current City of Fresno fee schedule assesses the projects for their impact to local and regional urban services,including water.In addition,when development permits are issued,fees to support expansions and service enhancements of the City’s water utility,including recharge activities,will also be imposed as conditions of approval for special permits Project specific water supply and distribution requirements must assure that an adequate source of water is available to serve the project.The City has indicated that groundwater wells,pump stations,recharge facilities,water treatment and distribution systems shall be expanded incrementally to mitigate increased water demands.The Department of Public Utilities,Water Division has reviewed the proposed project and has determined that water facilities are available to provide service to the subject site subject to several conditions. City of Fresno Printed on 12/16/2022Page 7 of 10 powered by Legistar™ File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: In addition,when development permits are issued,the subject site will be required to contribute to the completion of the FMFCD’s master planned storm drainage facilities,and to preserve the patency of irrigation canals and pipelines for delivering surface water to recharge/percolation basins.Stormwater ponding basins provide significant opportunity to recharge groundwater with collected storm water run-off and surface water obtained from the Fresno Irrigation District (FID)and United States Bureau of Reclamation on the northern edge of the current urban limit boundary.The Department of Public Utilities works with FMFCD to utilize suitable FMFCD ponding (drainage)basins for the groundwater recharge program,and works with FID to ensure that the City’s allotment of surface water is put to the best possible use for recharge. The Fresno Irrigation District’s (FID)Canal No.99 runs southerly along the west side of Locan Avenue approximately seventy (70)feet west of the subject property.FID owns a fifteen (15)foot wide easement,recorded February 1,2007, as Document Number 2007-0021333 of the Official Records of Fresno County.This pipeline was installed in 2007 as 24-inch diameter ASTM C-361 Rubber Gasket Reinforced Concrete Pipe (RGRCP)which meets FID’s minimum standards for developed areas. As mentioned above,when development permits are issued,the subject site will be required to contribute to the completion of the FMFCD’s master planned storm drainage facilities,and to preserve the patency of irrigation canals and pipelines for delivering surface water to recharge/percolation basins.Fees to support expansions and service enhancements of the City’s water utility,including recharge activities,are also imposed as conditions of approval for special permits. Occupancy of this site will generate wastewater containing human waste,which is required to be conveyed and treated by the Fresno-Clovis Regional Wastewater Treatment and Reclamation Facility.There will not be any onsite wastewater treatment system.The proposed project will be required to install sewer branches,and to pay connection and sewer facility fees to provide for reimbursement of preceding investments in sewer trunks to connect this site to a public system. In conclusion,based on this analysis and implementation of the project specific mitigation measures developed for the proposed project, the project will not result in any significant impacts to hydrology and water quality. The subject shall comply with the applicable service delivery requirements necessary to provide not less than the minimum acceptable level of fire protection facilities and services appropriate for urban uses.City police and fire protection services are available to serve the subject site.The subject site is located within two miles of Clovis Fire Station No. 44. The City of Fresno and Clovis have an automatic aid agreement. The demand for parks generated by the project will be within planned service levels of the City of Fresno Parks and Community Services Department and the applicant will pay any required impact fees at the time building permits are obtained. Any urban residential development occurring as a result of the proposed project will have an impact on the School District’s student housing capacity.The Clovis Unified School District,through local funding,is in a position to mitigate its shortage of classrooms to accommodate planned population growth for the foreseeable future.However,the District recognizes that the legislature,as a matter of law,has deemed under Government Code Section 65996,that all school facilities impacts are mitigated as a consequence of SB 50 Level 1,2 and 3 developer fee legislative provisions.The developer will pay appropriate impact fees at time of building permits. The Department of Public Utilities has reviewed the proposed plan amendment,rezone,and tract map applications and has determined that sewer and water facilities are available to provide service to the subject site.The nearest available water main (14”)is located in North Locan Avenue.The nearest sewer main is located in North Locan Avenue (8”). Finally,the Fresno Metropolitan Flood Control District (FMFCD)has indicated that the FMFCD system could accommodate the proposed pre-zone if the District’s Drainage Area “DS”Master Plan has been adopted,which has been incorporated as a Project Specific Mitigation Measure. Council District Plan Implementation Committees The District 4 Plan Implementation Committee made a formal recommendation on October 13,2014.The Committee recommended approval of the plan amendment and rezone by a 3-0 vote with two (2) committee members absent. City of Fresno Printed on 12/16/2022Page 8 of 10 powered by Legistar™ File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: Fresno City Planning Commission On October 15,2014,the Fresno City Planning Commission considered Plan Amendment Application No.A-13-009 and Rezone Application No.R-13-016.At the hearing,one resident in the immediate project area spoke in direct opposition to the project while others had general comments.These related to anticipated roof heights in proximity to adjacent properties,fugitive dust control measures,and potential loss of view sheds,precedent setting development, and infrastructure support.After some discussion and points of clarification regarding concerns,the Planning Commission recommended approval of the plan amendment and rezone applications and the related environmental assessment to the City Council and approved by a vote of 7 to 0. Conditions of Zoning The following Conditions of Zoning are required as a Condition of Approval: 1)Prior to the recordation of the Final Map for Tentative Tract Map No.6067 the applicant shall enter into a standard subdivision agreement as required by City of Fresno Municipal Code.Among other things,said subdivision agreement shall memorialize the applicant responsibility to construct all improvements to City of Fresno standards and to pay all applicable fees,connection charges or assessments as may be applicable to the Final Map of Tract No. 6067 per the adopted City of Fresno Fee Schedule in affect at the time of Final Map recordation. 2)The project applicant/property owner shall comply with project specific mitigation measures,including,payment of impact fees;participation in any future Community Facilities Districts,as may be required by the City of Fresno Director(s) of Public Works and Public Utilities. 3)Project approval(s)(Amendment and Rezone applications)are contingent upon Tentative Tract Map No.6067 being approved by the City of Fresno. 4)The project applicant/property owner shall enter into a side letter agreement with both the City of Fresno and County of Fresno with respect to the Restated Memorandum of Understanding.This shall be completed prior to annexation of the subject property. 5)Project approval(s)(Amendment and Rezone applications)are contingent upon the following Accessor Parcel Numbers (APNs)being annexed into the City of Fresno by the Local Agency Formation Commission (LAFCo): APNs:310-270-09,10,11,and 12.Proposed annexation is subject to the Standards of Annexation of the City/County Restated Memorandum of Understanding (MOU). 6)Prior to the recordation of the Final Map for Tentative Tract Map No.6067 the applicant shall submit to the Development and Resources Management Department a Noise Study for the project site.Special attention shall include proposed/required walls off North Locan Avenue. 7)Application and project description needs to reference APN No.310-270-09,which is to be annexed with the proposed site. 8)Project approval(s)(Amendment and Rezone)are contingent upon a future planned watershed proposed as Drainage Area “DS” being approved in conjunction with the 2035 Fresno General Plan. 9)Prior to recordation of the Final Map for Tentative Tract Map No.6067 the applicant shall construct the following to improve intersections at LOS D or better: a.Shields Avenue and Locan Avenue - install an all-way stop control and add westbound left-turn lane. b.The project shall widen/restripe the intersection of Olive and Temperance Avenues to the following configuration: i.Eastbound - one left-turn lane and one through lane with a shared right-turn lane City of Fresno Printed on 12/16/2022Page 9 of 10 powered by Legistar™ File #:ID#14-584 Agenda Date:11/20/2014 Agenda #: ii.Westbound - one left-turn lane and one through lane with a shared right-turn lane iii.Northbound - one left-turn lane and one through lane with a shared right-turn lane iv.Southbound - one through lane with a shared left-turn lane and one right-turn lane ENVIRONMENTAL FINDINGS An environmental assessment was prepared for this project in accordance with the requirements of the California Environmental Quality Act (CEQA)Guidelines.This process included the distribution of requests for comment from other responsible or affected agencies and interested organizations. The proposed amendment of the adopted 2025 Fresno General Plan,along with the accompanying pre-rezone,have been determined that although the proposed project could have a significant effect on the environment,there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent.It has been further determined that mitigation measures have been incorporated as project specific mitigation measures to assure that the project will not cause significant adverse cumulative impacts,growth inducing impacts and irreversible significant effects.Therefore,it has been determined based upon the evidence in the record that the project will not have a significant impact on the environment and that the filing of a mitigated negative declaration is appropriate in accordance with the provisions of CEQA Section 21157.5(a)(2)and CEQA Guidelines Section 15178(b)(1) and (2). Based upon the attached environmental assessment and the list of identified project specific mitigation measures, staff has determined that there is no evidence in the record that the project may have a significant effect on the environment and has prepared a mitigated negative declaration for this project.A public notice of the attached mitigated negative declaration finding for Environmental Assessment Application No.A-13-009/R-13-016/TM-6067 was published on September 25,2014.Due to a technical error (i.e.,SEDA vs.SEGA being referenced),the environmental assessment was re-published in the Fresno Bee and re-filed on October 17,2014.Subsequently,the public review/comment period had been extended to November 10, 2014 with no comments to date. LOCAL PREFERENCE N/A FISCAL IMPACT Affirmative action by the Council will result in timely deliverance of the review and processing of the application as is reasonably expected by the applicant/customer.Prudent financial management is demonstrated by the expeditious completion of this land use application inasmuch as the applicant/customer has paid to the City a fee for the processing of this application and that fee is,in turn,funding the respective operations of the Development and Resource Management Department. Attachment:Vicinity Map Aerial Photograph Public Hearing Notice Mailing List Vicinity Map 2025 Fresno General Plan Planned Land Use Map Proposed Zone District Map Proposed Planned Land Use Map Proposed Vesting Tract Map Standards for Annexation Operational Statement Agency Comments Environmental Assessment No. A-13-009/R-13-016/TM-6067 dated October 17, 2014 Planning Commission Resolutions Nos. 13309 (EA & Plan Amendment) and 13310 (Rezone) City Council Resolution for Plan Amendment Application No. A-13-009 City Council Ordinance Bill for Rezone Application No. R-13-016 City of Fresno Printed on 12/16/2022Page 10 of 10 powered by Legistar™ R tCIIVED ¡!}i hiü,i is fìn 1i Ï5 Agenda ltem: lD#14-584 (4:00 P.M.) Date: LLl6lt4 crTY cLtRK, FRES|¿ÛFRESNO CITY COU NCI L Ë5=orrs\r/z:fflE=iEz¿rrù- Supplemental lnformation Packet Agenda Related Items - lD#14-584 (4:00 P.M.) Supplemental Packet Date: November 2O,2OL4 Item(sl CONTINUED HEARING to consider Plan Amendment Application No. A-13-009, Rezone Application No. R-13-016, and related environmental assessment for the property located on the east side of N. Locan Avenue between the E. Dakota alignment and E. Shields Avenue (Gouncil District 4) Development and Resource Management Department Supplemental lnformation : Any agenda related public documents received and distributed to a majority of the City Council after the Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600 Fresno Street, during normal business hours (main location pursuant to the Brown Act, G.C. 54957.5(2l.. ln addition, Supplemental Packets are available for public review at the City Council meeting in the City Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City Clerk's website. Americans with Disabilities Act (ADA): The meeting room is accessible to the physically disabled, and the services of a translator can be made available. Requests for additional accommodations for the disabled, sign language interpreters, assistive listening devices, or translators should be made one week prior to the meeting. Please call City Clerk's Office at 621-7650. Please keep the doorways, aisles and wheelchair seating areas open and accessible. lf vou need assistance with seatine because of a di ', prease see 80 Condesa Rd. Santa Fe, NM 87508 November 17 2014 ;Ì t CtIV ED iùitj i'¡ilU iS fin 10 i6 CITY CLTRK, FRESNO CA Fresno City Council City Hall Fresno, CA LETTER FOR ID#I4-584, BONNADELLE DEVELOPMENT IN SEGA My name is John Cierva and my farnily has acreage in the South East Grouth Area, SEGA. My sister and her husband are the Tmstees for it but all of us are Trust beneficiaries. She helped with this letter and is going to deliver it to the city this week. One of the reasons I was glad to move ar.va¡, from Fresno is all the corruption. It's funnier from a distance, when I don't have to personally pal,for any of it. This Bonnadelle development is more of the same, and by the same family that got in trouble with Operation Rezone! When slre heard about this Bonnadelle project, rny sister and her friends looked atthe 2025 General Plan to make sure they remembered right. They did. They didn't go to college for planning but I think they managed to do a better job than your whole Development Department when it came to finding the SEGA rules that should apply, My sister typed up the list of 2025 General Plan SEGA rules. She'll deliver it with this letter. Friends of ours were on the General Plan committee to make sure that the land that Fresno wanted to add to the city would have a good plan before any developers could jump in and mess it up, or get the better of other property owners who are regular people like us. The committee made sure that the General Plan had sensible and strict rules for the South East Growth area, The most important rule for our area is that the city would have to approve a detailed SEGA plan before new development would be allowed in SEGA, This was supposed to make sure that the area got the right roads, water supply, fire stations, se\.vers, schools and parks to go along with development. The SEGA area plan was sltpposed to make sure everybody would pay a fair share for these things, and that no properly owners could jump out ahead of plan and get a better deal than the rest of us, No properlies in SEGA rvere supposedto develop until all the plans and studies rvere done, This is spelled out exactly in General Plan C-2-n Policy. It's on page one of the list that my sister and her friends made. The list of SEGA rules that this Bonnadelle project breaks is four pages long. The ID#I4-584 report is only 10 pages long. It doesn't talk about 99% of these rules at all. It pretends like the SEGA rules don't exist, like they never got approved in2002. Well they were. If you don't know it, read what my sister and her friends found. The 2002 General Plan is still in force. It is supposed to be followed, especially for big issues like a whole new community plan. My sister's füends said that they never saw so many General Plan policies ignored or broken just to approve a tract on one developer's lrttle piece of land. They say that is spot-zoning and it's not legal according to the California planning regulations. Wlren I looked into the zoning,I saw that the ID#14-584 Rezone Ordinance has so many clauses for future studies and contracts that it can't be legal. My sister's friends say that you can't kick the can down the road when it comes to plans, studies and contracts, The city council isn't supposed to approve projects until the plans, studies and contracts for it are done and everyone has a chance to review those things, Approval hearings are supposed to come AFTER the council (and the neighborhood) has the whole picture. 2 Tlre citv had l2 years after 2002to get the detailed SEGA plan done that the General Plan said to prioritize. It should be comical. but this deals with hundreds or thousands of people's properties. Even though the SEGA plan never got done, that doesn't justify breaking the 2025 General Plan pohcy and letting certain developers go ahead with projects in SEGA. The city doesn't owe any developer a go- ahead to build in an areathat doesn't have the necessary detailed plan. Besides, ifyou let one developer go ahead in SEGA, how can you legally say no to all the other developers? I don't know who the city thinks it is fooling by trying to get Bonnadelle exempted out of the SEGA rules by magically moved his property into the Roosevelt Plan. What planning genius thought up TFIAT phony dodge? Moving the plan boundary line does not get the REQUIRED detailed plan done for 'the area you want formerly known as SEGA." The Roosevelt Plan was adopted miles away and twenty years before the 2002 General Plan even created The Place Called SEGA. The Roosevelt Plan has never had any details or any information at all on land in the SEGA area. The original Roosevelt Plan information for water service, sewer mains, open space, schools, and fire stations had no information pertinent to Bonnadelle's land way up near Dakota and Locan. The Roosevelt Plan never was updated to provide detailed planning for any part of SEGA. It's a slimy trick to say that the Bonnadelle property is not in SEGA, it's in the Roosevelt Plan area, because some line is being moved on a map in ID#14-584. It's a WORTHLESS slimy trick because it can't work. It doesn't accomplish what the 2025 Fresno General Plan requires. Can you wonder W}IY people in the Count)/ don't want to get annexed to the crooked City of Fresno? The city breaks its promises and throws away its rules if sorne developer wants something. I'm glad that the Fresno Mayor didn't get elected comptroller, because one thing California doesn't need is sneak¡, moves like this when it comos to the rvhole state's money! The Mayor seems to be in favor of the Bonnadelle project, since the Staff Recommendation is to approve it and the staffworks for her. I think this shows that she is rnaking bad money decisions for the city and for property owners in SEGA. Whatever palments that Bonnadelle avoids by jumping ahead of all the SEGA plans and studies means that the rest of us will have to pay more when the bills come due for the roads, the water system, the sewers, the fire stations, and the parks. Costs avoided by Bonnadelle will be laid off on other properties (or the city general fund). Higher fees due will make the appraisal on our trust property come in lower, The city might make my sister and other people hook up to water and sewer so the city can get money back to cover for what it didn't make the Bonnadelle lots pay. Our taxes and utility bills will make up what Bonnadelle evades of by jumping the gun and breaking the SEGA rules adopted inthe2025 GP. Business as usual Fresno style, developers make their profits, people like us pay for it. I don't know who the City hired to write the Environmental part of the ID#14-584 report, If it was the 3 million dollar consultant that the City hired for SEGA, that money was wasted, too. How can all those boxes be checked for NO IMPACT? How can anybody know about Biological Resources, when the lrabitat conservation study for the SEGA community plan never got done as called for in 2025 General Plan G-12.e Policl,f No biologists ever carne to my sister's neighborhood to look around for frogs, toads, salamanders, foxes, delta smelt, or whatever. How can NO IMPACT be checked for Hydrology And Water Quality, Utilities, and Public Services? No water or sewer plans for SEGA ever got done. People's wells are going dry all over SEGA, but nobody bothered to do the rvater plan that the General Plan requires for the area, How can anybody know whether Bonnadelle's tract can get built without making the water situation worse for other SEGA properties like ours? With no water plan for SEGA, what is the city's game plan if our wells get sucked dry? 3 There's no new server line or se\ /er plant built for SEGA, either. Does that mean Bonnadelle will be buying sewer seryice from Clovis? (Wasn't that the root cause of Operation Rezone corruption 20 years ago? LOLI History strikes again!) How can your Environmental consultant check off ANY boxes in the ID# 14-5 84 Environmental report witlrout ANY of the SEGA plans and studies that the 2025 General Plan said had to be done before SEGA development could happen? One of n'ry sister's friends knorvs an Environmental attorne),. The attorney said that if the SEGA rules in the General Plan don't get followed, the Master Environmental Study for the General Plan is no good because habitat, water, and other things in never got addressed for SEGA. That doesn't seem matter to the Environmental consultant for the Bonnadelle project, though. The consultant attached the Master list at the end of the ID#14-584 Environmental report as if it was worth the paper it's printed on. The Environmental lawyer who our friends know thinks a whole new Environmental Impact study is what the Bonnadelle project needs. I agree with that! If the old General Plan plan isn't worth following, and a rvhole different set of rules apply, a new Environmental Impact study is needed. Isn't there a new General Plan and Environmental Impact study for the whole city in the works? I have to wonder what is the big hurry on this Bonnadelle development? He has plenty of lots to build on. He just bought Millerton New Town. My sister says the Sunday real estate section in the Fresno Bee is full of Bonnadelle homes. Is he in a hurry because he wants to beat whatever rules are in the NEW General Plan as well as the SEGA rules in the OLD General Plan? Why? Didn't Bonnadelle get a seat on the new General Plan committee? Why wouldn't he want to develop his land under the rules he helped write for himself and his buddies? M¡' sister says the new General Plan must be coming up for hearing soon, because the city hired some little kids to do radio commercials in favor of it. If that is rvhat's going on, I am SHOCKED, JUST SHOCKED that the city is showing its true colors in the ID#14-584 report so close to the hearing on the new General Plan. If the city openl¡, ignores four pages of protective rules from the last General Plan, do you seriously expect anybody to stand up and cheer for the new Plan? Long Live The General Plan! Not very long, if some developer wants special treatment. You might as well call the next one "The Mayfly General Plan." With City Hall's planning ethics it will last about as long as one of those trout snacks. Some pretty fishy things are going on with ID#14-584. If any of you councilmen vote for any part of this Bonnadelle project or its Environmental report, you should be ashamed. The City will probably get sued by environmental attomeys and lose again (another 3 million dollars down the drain). Anybody who supports it probably will never get elected state comptroller, either. Sincerely, 2025 Fresno General Plan SEGA Rules. adopted in 2002 Chapter 1., Purpose of the General Plan and General Plan Goals. Based upon the consideration of these factors, the 2025 Fresno General Plan is intended to serve as a guíde to enable government at all levels, private enterprise, community groups, and individual citizens to make decisions and utilize community resources in a manner that will realize progress toward a common vision of a measurably enhanced physical, economic, and social environment. lt is intended to accomplish this purpose through the use of both the map and text of the General Plan itself as well as through the more direct guidance provided by the city's adopted community and specific plans. . . .Community and/or specific plans will be prepared to provide more direct guidance for development of the 2025 General Plan North Growth Area and Southeast Growth Area (Exhibit 1) -General Plan Page 1 A. IMPLEMENTATION ELEMENT, lmplementation Program. The General Plan contains many policies and proposals which provide new direction for the city and will require that the council establish priorities, staffing, and funding commitments in order to implement. This is especially important as related to preparation of community and/or specific plans for the Southeast Growth Area (Appendix G) and for revitalization and enhancementof the established urban core communities, -General Plan Page 13 A-1-f Policy. Give high prioríty to preparation of community plan and/or specific plan documents for the proposed Southeast Growth Area (conceptually shown in Appendix G) and for established urban core communities including the centre city, Central Plan Area and traditional downtown, -General Plan Page 1.5 C. URBAN FORM ELEMENT. The 2025 Fresno General Plan continues the goal of its unadopted predecessor, the Fresno 2000 General Plan, to accommodate a population of 725,O0O people within the city's existing urban boundary established by the L983 Joint Planning Resolution and the l-984 Fresno General Plan. However, two growth areas are proposed to the north and southeast of the presently adopted planned urban boundary to accommodate the additíonal 65,000 people projected through the year 2025. However, development w¡thin the proposed North Growth Area (L0,000 population holding capacity) and Southeast Growth Area (55,000 population growth capacity) would be subject to compliance wíth numerous planning and urban development management measures established by the 2025 Fresno General Plan (see Exhibit L), -General Plan Pages 20-21 C-2-n Policy. Development of the Southeast Growth Area (Exhibit 1), bound by the Gould Canal and McCall, McKinley, Highland, Jensen, Temperance and Locan Avenues, may proceed subject to approval of a detailed community and/or specific plan (conceptually shown on Appendix G) to accommodate a populat¡on of 55,000, comprised of an urban village south of the Gould Canal with a population of approximately 10,000 people and south of Tulare Avenue an urban activity center to accommodate approximately 45,000 people. o Obtain approval of the additional area within the urban boundary and sphere of influence in accordance with the provisions of the 1983 Joint Resolution on Metropolitan Planning. . Establish policies and standards as amendments to the Roosevelt Community Plan or as a new community plan or specific plan to direct development of an appropriate range of land uses with adequate public facilities and services. . Apply all appropriate development standards, including urban growth management policies necessary to ensure the timely provision of adequate public facilities and services consistent with 2025 General Plan policies that new development not be subsidized by existing development. o lmplement community or specific plan directives consistent with the 2025 General Plan to establish a unique mixed use community, including village centers, that compliment and strengthen the metropolitan area. -General Plan Pages 33-34 E. PUBLIC FACILITIES ELEM ENT Direction 1-. Transportation/Streets and Highways. ¡ Manv major streets in the west and southeast areas will develop bottlenecks where extensive rural residential development exists, leaving two-lane sections of roadway until such time as the rural properties redevelop into urban uses. -General Plan Page 58 E-1-i Policy. Prepare and adopt a comprehensive major street circulation system plan prior to approval of urban development within the Southeast Growth Area (Appendix G) identified by the 2025 Fresno General Plan (Exhibit 4). -General Plan Page 69 7. Sewer. While the RWTRF facility located southwest of the Fresno Metropolitan Area is the regional treatment and reclamation facility, alternatives for future capacity include sub-regional facilities located in the eastern portion of the proposed Clovis growth area and one or both of the North and Southeast Growth Areas presented by the 2025 Fresno General Plan -General Plan Page 62 E-18-b Policy, Pursue enlargement or extension of the sewage collection system where necessary to serve planned urban development including the designated North and Southeast Growth Areas, with the capital costs and benefits allocated equitably and fairly between the existing users and new users while facilitating economic diversification. New users shall, to the extent not ¡nconsistent with economic diversification strateg¡es, pay for the cost of being attached to the collection system through connection fees, including the cost of any incremental burden that they may place on the entire system; and pay for their share of operational and maintenance costs in addition to any costs for extraordinary facilities such as lift stations or capacity enhancement measures, -General Plan Page 86 8. Water E-22-k Policy. lmplement the Fresno Metropolitan Water Resource Management Plan as necessary to ensure adequate water supplies are available for both short and long term needs so that development of peripheral areas, includíng the planned North Growth and Southeast Growth Areas, will not adversely affect efforts to balance water demand with water supply. -General Plan Page 89 9. Drainage/Flood Control E-23-a Policy. The Storm Drainage and Flood Control Master Plan of the Fresno Metropolitan Flood Control District (FMFCD)shall be consistentwith and incorporated in the General Plan including updating and revising as necessary to accommodate intensified urban uses within established areas and development within the designated North and Southeast Growth Areas. -General Plan Page 90 E-23-c Policy. The City of Fresno shall coordinate with the Fresno Metropolitan Flood Control District in updating the Flood Control Master Plan as necessary to determine the optimum locations for drainage basins and other facilities necessary to serve urban development including planned urban intensification and the planned North Growth and Southeast Growth Areas, -General Plan Page 90 1L, Fire Services - One or more additional fire stations will be necessary to serve the Southeast Growth Area. Under guidelines established by the city's UGM Policy, the permanent service area of fire stations, for urban development, has been set at a two-mile "running" distance. On an interim basis, until new stations can be constructed, the "running" distance from an existing fire station may be extended to three miles to allow the development of standard residential developments. -General Plan Page 65 E-25-a Policy. Utilize the procedures and criteria contained withín the Urban Growth Management (UGM) Policy and Ordinance to provide an equitable means through which the provision of fire service can be addressed throughout the UGM area íncluding the planned North and Southeast Growth Areas. -General Plan Page 92 E-26-a Policy. Use adopted general and specific plans, the city's GIS database, and the fire station location program to achieve optimum siting of future fire stations. For those station sites identified by the 2025 General Plan Land Use and Circulation Map (Exhibit 4) but not yet acquired by the city, the underlying alternative land uses shown on Table 5 shall be applied. o The siting of any additional new stat¡on locations to serve future development such as the North and Southeast Growth Areas shall occur through the applicable community or specific plan adoption/amendment process. -General Plan Page 93 12. Schools E-29-c Policy. Encourage school districts to request the designation of needed new school sites on the appropriate plan land use map, at the earliest time possible, in order to facilitate planning for compatible land uses and better ensure that future school sites can be accommodated. For those public school sites designated by the 2025 General Plan Land Use and Circulation Map (Exhibit 4) not yet acquired by the appropriate district, the alternative land uses shown on Table 3 shall be applied o The City shall consult with the affected school districts to assure that adequate school sites are identified and planned for in preparing the appropriate community or specific plans for the North and Southeast Growth Areas. -General Plan Page 96 F. OPEN SPACE/RECREATION ELEMENT F-1-i Policy. Park sites shown on the land use map of this General Plan Update/Master Parks Plan shall serve as an overlayfor community and specific plan land use maps. Additional parks and open space may be depicted as needed and appropriate in community and specific plans (e,g,, in a specific plan or redevelopment plan), and in the San Joaquin River Parkway area. Additional park sites will be determined during preparation of required community plan and/or specific plan documents for the North Growth Area and Southeast Growth Area as depicted on the 2025 General Plan Update' -General Plan Page 102 F. RESOURCE CONSERVATION ELEMENT Asricultural Land G-5-b policy. Plan for the location and intensity of urban àevelopment in a manner that efficiently utilizes land area located within the planned urban boundary, including the North and Southeast Growth Areas, while promoting compatibility with agricultural uses located outside of the planned urban area. -General Plan Page 137 Native Plants and Wildlife G-12-e Policy, Open Space land use designations, appropriate zoning, setbacks, and conservation easements will be used to preserve areas identified as sensitive or critical habitat for rare, threatened, or endangered vegetation and wildlife species, with particular attention paid to the North and Southeast Growth Areas and to the preparation of the required community and/or specific plans for these expansion areas of the 2025 Fresno General Plan. -General Plan Page L56 APPENDIX G This is only a 1-page colored map that the city said was just a concept for the South East Growth Area. This Appendix did not have any written plan details or policies for SEGA, like Appendix W for the West Area Plan had. At the committee meetings and in hearings, the city said that the SEGA concept map was going to be replaced by an actual detailed community or specific plan, but it never was. Date Adopted: 1 Date Approved: Effective Date: City Attorney Approval: ______ Resolution No. RESOLUTION NO. _________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, AMENDING THE 2025 FRESNO GENERAL PLAN AND THE ROOSEVELT COMMUNITY PLAN (PLAN AMENDMENT APPLICATION NO. A-13-009) WHEREAS, on November 19, 2002, by Resolution No. 2002-379, the City Council adopted the 2025 Fresno General Plan which correspondingly adopted the Roosevelt Community Plan; and, WHEREAS, Dirk Poeschel, on behalf of John Bonadelle, has filed an application to amend the 2025 Fresno General Plan and the Roosevelt Community Plan for ± 24.71 acres, shown in Exhibit “A,” from the agricultural designation in the County of Fresno to the Medium Low Density Residential planned land use designation in the City of Fresno; and, WHEREAS, the environmental assessment conducted for the proposed plan amendment resulted in the filing of a Mitigated Negative Declaration on October 17, 2014; and, WHEREAS, on October 15, 2014, the Fresno City Planning Commission held a public hearing to consider Plan Amendment Application No. A-13-009 and the associated mitigated negative declaration prepared for Environmental Assessment No. A-13-009/R-13-016/TM- 6067; and, WHEREAS, the Fresno City Planning Commission took action, as evidenced in Planning Commission Resolution No. 13309 to recommend approval of Plan Amendment Application No. A-13-009, which proposes to amend the 2025 Fresno General Plan and the Roosevelt Community Plan for ± 24.71 acres from the agricultural designation in the County 2 of Fresno to the Medium Low Density Residential planned land use designation in the City of Fresno; and, WHEREAS, on November 20, 2014, the Fresno City Council held a public hearing to consider Plan Amendment Application No. A-13-009 and received both oral testimony and written information presented at the hearing regarding Plan Amendment Application No. A- 13-009. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno, based upon the testimony and information presented at the hearing and upon review and consideration of the environmental documentation provided, as follows: 1. The Council finds in accordance with its own independent judgment that although Plan Amendment Application No. A-13-009 could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent that would avoid or mitigate the effects to a point where clearly no significant effects on the environment will occur, and there is no substantial evidence that the project, as revised, may have a significant effect on the environment. It has been further determined that all applicable project specific mitigation measures have been incorporated to assure that the project will not cause significant adverse cumulative impacts, growth inducing impacts, and irreversible significant effects. Therefore, it has been determined based upon the evidence in the record that the project will not have a significant impact on the environment and that the filing of a mitigated negative declaration is appropriate in accordance with the provisions of Public Resources Code Section 21157.5(a)(2) and CEQA Guidelines Section 15178(b)(1) and (2). Accordingly, the Council adopts the Mitigated Negative Declaration prepared for Environmental Assessment No. A-13-009/R-13-016/TM-6067 dated October 17, 2014. 3 2. The Council finds the adoption of the proposed plan amendment as recommended by the Planning Commission is in the best interest of the City of Fresno. 3. The Council of the City of Fresno hereby adopts Plan Amendment Application No. A-13-009 amending the 2025 Fresno General Plan and Roosevelt Community Plan planned land use designation for ± 24.71 acres from the agricultural designation in the County of Fresno to the Medium Low Density Residential planned land use designation in the City of Fresno, as depicted by Exhibit “A” attached hereto and incorporated herein by reference. 4. The Council finds that the proposed project, for the reasons cited in the record, shall be the only entitled development within the SEGA Planning Area and that any future development requests within the SEGA Planning Area shall not be considered, until such time all requirements of the City of Fresno and County of Fresno Memorandum of Understanding (MOU) are complied with. * * * * * * * * * * * * * * * * * * 4 STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, California, at a regular meeting held on the 20th day of November, 2014, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor Approval: , 2014 Mayor Approval/No Return: , 2014 Mayor Veto: , 2014 Council Override Vote: , 2014 YVONNE SPENCE, CMC City Clerk By _____________________________ Deputy APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By Mary Raterman-Doidge Date Deputy City Attorney Attachment: Exhibit A City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-567 Agenda Date:11/20/2014 Agenda #: SCHEDULED COMMUNICATION November 20, 2014 TIME 10:15 A.M. SUBJECT Appearance by George Aguilar, Al Makkai, Juan Bejar and Mario Soto to discuss the operation of the transportation company UBERX and why the company is not subject to the City of Fresno’s taxi regulations City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ FII CI IVE D PROPOSAL ¡f1T tiii 5 f,n 3 e3 Honorable members sno City Council, please consider this a request that the current Fresno Municipal €óãè'f¿ Si&tôptohibit any and all operations of "Transportation Network Companies", hereinafter "TNCs", in the City of Fresno. The taxi industry in the City of Fresno is fighting for survival. As a crucial part of the City's transportation network, local taxi companies just as those throughout Calîfornia, are highly regulated by municipalities in "order to control traffic flow, ensure passenger safety and protect the public health, safety and welfare." (Section 902o. Findings ond Determinations, Municipol Code City of Fresno). Local taxi companies are close to extinction at the hands of the largely unregulated TNCs such as Uber, Lyft and Sidecar, which use smartphone applications that allow customers to summon and pay for rides from drivers using their personal cars and personal auto insuronce policies. On September L9, 20i.3, the California Public Utilities Commission adopted rules and regulations and approved a decision to allow TNCs to operate in California (refer to CPUC Decision 13-09{45). Although the State of California claims jurisdiction, the Commission imposed regulations on the TNCs that leave them unencumbered by the sorts of rules, insurance requirements and licensing fees that cities such as Fresno impose on taxis. This decision was modifiedby Decision Modifying Decision 73-09-045 on July 70,2074. (See attached Exhibit "4", consisting of said CPUC decísion). For example, TNCs companies and drivers not obligated to comply with FMC Section 6-912,which requires taxicab cornpany owners and taxicab drivers to complete permit applications for each vehicle, complete a business tax application (TNC drivers pay no city business taxes, no state and federal employment/payroll taxes and are not in receipt of tRS Form 1099 as independent contractors), pay all delinquent business taxes, submit to vehicle inspection by a certified repair facility, comply with Department of Motor Vehicle taxi registration requirements and provide live scan fingerprints taken by the Fresno City Human Resources Department as an aid in checking back rounds of prospective taxicab drivers. ln addition, taxicab company owners and drivers must submit a certificate of insurance that is acceptable to the Risk Management Division for each vehicle. It is the insurance requirement that reveals the flux, confusion and indecision by the CPUC and the insurance industry. Currently, TNC companies offer drivers S1,000,000.00 in commercial liabiliÇ insurance. But TNC coverage is excess insuronce, ostensibly triggered only at the point where the personal policies of the TNC drivers, using their own vehicle, stop paying. TNC companies contend that drivers' personal policies should be the insurer of first resort. But now the insurance industry and the California Department of lnsurance are attempting to dismantle this two-tier TNC coverage by backing AB 2293 sponsored by Assemblywoman Susan Bonilla (D-Concord) (See attached Exhibit "8", consisting of 482293). Currently, the commercial insurance industry does not have a product to insure a TNC operation (Refer to Exhibit "C", consisting of documentation from Gold Canyon lnsurance Services). (All the more reason to prohibit TNC operations in the City of Fresno). The proposed Bonilla bill, which does not set specific coveroge omounts, would require TNCs to advise drivers that their personal insurance may not provide coverage during TNC work. The bill would force TNCs to carry primary insurance, like taxis do, and indemnify drivers against lawsuits for loss and personal injury when providing TNC work. /D#t1-5t,7 ttlzo lt* PaFe Two AB 2293 has yet to be approved by the legislature. ln the meantime, those individuals who opt to hire a TNC for ride will not be afforded the same insurance coverage as they would during a traditional taxicab ride. Aside from the issue of insurance, there remains those regarding access for the disabled, the servicing of all neighborhoods and "surge pricing," a practice in which the TNCs - especially Uber- boost rates when demand increases for services. At this time, the CPUC is considering adding regulations to address these concerns. Attached for your review and further consideration is correspondence from CPUC director Michael R. Peevy, dated June IO,2074 and directed to Travís Kalanick, owner of UberX. The correspondence outlines concerns regarding TNC drivers operat¡ng without permits and in general flaunting the little regulatíon they are subjected to by CPUC regulation. ln the spirit and the necessity of Section 902a of the Fresno Municipal Code so as to insure the safety of all Fresnans who, at any given time, may need a ride for hire, we ask that prohibit TNCs from operating within the city of Fresno. Moreover, the California legíslature has yet to fully act; the CPUC has yet to promulgate additional regulations to protect the public. States, counties and cities across the nation have attempted to stop TNC operations. We ask that you do the same and in the alternative, at least temporarily prohibit TNC operations during the interím while the California legislature and the CPUC fully act on the matter. Thank you for your consideration. Respectfully submitted, Concerned Taxicab Owners and driver of Fresno EryL+16 tT 4 COM/MPUsbflhI PROPOSED DEGISION Agenda ID #13072 (Rev. 1) Quasi-legislative 7 /10/2014 Item 40 DCCiSiON PROPOSED DECISION OF COMMISSIONER PEEVEY (Mailed 6/10/14) BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Order Instituting Rulemaking on Regulations Reiating to Passenger Carriers, Ridesharing, and New Online-Enabled Transportation Services. Rulemakin g 12-12-011' (Filed December 20, 2012) DECISION MODIFYING DECISION 13.09-045 1. R.\2-I2-011 CoM/ };aPI / sbf / tit PROPOSED DECISION (Rev. 1) Table of Contents Title Page DECISION MODIFYING DECISION 13-09-045............. ..........1 1. Summary .......................2 2. Procedural History ......4 2.1. The Assigned Commissioner's Ruling (ACR) ....................4 3. Defining the phrase "Providing TNC Services" ........5 3.L. Comments on the ACR ....,..5 3.2. Discussion ............8 3.3. Comments on Insurance Coverage in Response to the ACR....,....,10 3.4. Discussion ".....'..13 3.4.1. The Extent of the Insurance Requirements Ordered by This Decision......... ..................16 3.4.2. Summary of Required Insurance Coverage ....,..... ............ "'. 17 3.4.3. Applying the Modified Insurance Requirements to lJber Technologies, Inc. .............,.....19 3.4.3.1. Comments regarding applying modifications to Uber Technologies, Inc... ...................19 3.4.3.2. Discussion .............. ................20 4. All Ex Pørte Communications Must be Reported in this Quasi-Legislative Proceeding. .............. .....20 4.1,. Comments on Ex Pørte Communications ""'.-.'21 4.2. Discttssion ."..-"'.21' 5. Comments on Modified Decision ".".'.'.'..22 6. Assignment of Proceeding.............. ....'.."'.25 Findings of Fact '.".'.25 Conclusions of Law......... '."".'.26 ORDER .....................26 -L- R.12-\2-011 CoM/ }/rPl' / sbf / ril PROPOSED DECISION (Rev. l) DECISION MODIFYING DECISION 13-09.045 1. Summary This decision modifies Decision (D.) 13-09-045 which adopted rules and regulations for Transportation Network Companies (TNC)' The modifications deal with defining TNC services and the insurance the Commission requires while TNC services are being provided, Specifically, the modifications are: a. TNC services are defined with three periods. Period One is: App open - waiting for a match. Period Two is: Match accepted - but passenger not yet picked up (i.e. driver is on his/her way to pick up the passenger). Period Three is: Passenger in the vehicle and until the passenger safely exits the vehicle.r b. A minimum of at least $1 million primary commercial insurance is required for Periods 2 &x3. c. A minimum of at least $100,000 for one person, $300,000 for more than one person, and $50,000 for property damage of excess commercial insurance is required for Period 1. As explained in more detail below Period 1 is further complicated because a driver could have multiple apps open while waiting to get matched. This situation makes it impossible to require exclusive and primary insurance and sole duty to defend for insurance purposes. For period 1 we adopt city of Los Angeles' insurance amount that is required for all taxicabs.2 r We have heard from at least one airport that it requires that the app stay on until the TNC driver has left airport property. As we stated in D.13-09-045, the TNCs must follow any and all airport regulations the TNCs must keep the app on for any airport that has a requirement that the app stay on after the passenger has been dropped off and can be turned off no sooner than when the TNC driver has left airport property. Additionally, it should be noted that with respect to the three periods iisted above, TNC service wouid still continue in all situations after a passenger has exited a car provided that the driver's app is still open z LA Muni Code Section7l.\4. a R.12-12-011 COM/MP1./ sbf /lir PROPOSED DECISION (Rev. 1) d. TNCs can satisfy the insurance requirements by one of two ways; 1) maintaining such insurance on its own or 2) maintaining such insurance on its own in combination with a policy maintained by the TNC driver that is specifically written for the purpose of covering TNC services, or portion thereof. A TNC's insurance, as required by these regulations, is primary and exclusive and shall assume all liability for Periods 2 and 3. Such policy shall have the sole duty to defend for an incident which occurred during Periods 2 and3. In the event a driver maintained policy is used to partially fulfill the insurance requirements, a transportation network company's insurance must provide sole excess coverage to the driver's policy that is specifically written for the purpose of covering transportation network services, or portion thereof. In the event such driver maintained policy ceases to exist due to a coverage lapse, denial of claims, or policy cancellation, the transportation network company's insurance shail provide exclusive coverage, and assume all liability and the sole duty to defend, at dollar one. Unless coverage for TNC services is separately and specifically stated in the policy and priced pursuant to approvalby the California Department of Insurance, a driver's personal automobile policy is in no way required to provide coverage or the duty to defend for Periods 2 and 3. For Period 1 we are adopting excess commercial policy, because in this period the driver could have multiple apps on and only when a match is made with a passenger will it be certain which TNC is being used. Therefore, it is not reasonable to expect a TNC to provide exclusive and primary insurance during Period 1. It doesn't seem reasonable to have multiple prirnary coverage that is exclusive and has the sole duty to defend. aJ R.12-12-011 coM/MP1./sbf/til PROPOSED DECISION (Rev. 1) The final modification concerns the reporting of communications between interested persons and decision-makers. The Commission exercises its authority under Rule 1.2 of the Commission's Rules of Practice and Procedure to make Rule 8.4 (Reporting Ex Pnrte Communications) applicable to this proceeding. 2. Procedural History 2.1. The Assigned Commissioner's Ruling (ACR) An Assigned Commissioner's Ruling (ACR) was issued on March25,201,4, requesting coûunent on five proposed modifications to D.13-09-045.3 The need to issue that ACR was driven by a number of factors.¿ First, the phrase "providing TNC services" has been interpreted different ways; second, there was some uncertainty over whether a TNC driver's personal automobile insurance would apply to an incident where the TNC driver is wholly or partially at fault, the app is open, and there is no passenger in the vehicle; and third, the Commission analyzedwhether the TNC should provide coverage beyond commercial liability insurance required by our September 22,2013 decision. Concerns were raised by the California Insurance Commissioner and others about potential gaps in TNC insurance required by our September 22,2013 decisiory including lack of clear requirements for coverage of collision, comprehensive, uninsured/underinsured motorists, and medical expenses. The ACR proposed modifications so that coverage is provided on a consistent basis. The ACR also invited the parties to comment on the proposed changes. 3 ACR, at2-3. a Rule 1,6.4 of the Commission's Rules sets forth the procedure for a party to file a petition for modification, and the Commission also has the power pursuant to Pub. Util. Code $ 1708 to modify its decision. 4 R.12-12-011 COM/ MPL / sbf / ltl PROPOSED DECISION (Rev. 1) The following parties filed opening comments to the ACR: SideCar, Lyft, United Taxicab Workers, San Francisco Municipal Transportation Agency (SFMTA), San Francisco Cab Association, Luxor, Taxicab Paratransit Association of California (TPAC), Uber, Personal Insurance Federation of California (PIFC), Greater Livery, former mayor Willie L. Brown Jr, Christopher Dolan and the Dolan Law Firm (collectively referred to as Dolan).5 The following parties filed replies to the ACR: Sidecar, Lyft, United Taxicab Workers, SFMTA, San Francisco Cab Association, TPAC, IJber, and the Dolan Law Firm. 3. Defining the phrase "Providing TNC Services" 3.1. Comments on the AGR D.13-09-045 did not specifically define TNC services other than to say for the purpose of TNC services, a ride is considered prearranged if the ride is solicited and accepted via a TNC digital platform before the ride commences.6 The ACR proposed to define this term and asked parties for comment, because TNC companies seemed to settle on a definition that was too narrow and did not meet the Commission's original intent. Thirteen parties filed comments in response to the ACR. California Airports Council believes the definition must include the time a TNC driver is waiting for notification of new patrons and the time between trips. City and County of San Francisco supports closing the insurance gap but questions if the proposed modification is sufficient. The City proposes that "providing TNC services" should include those periods in which a driver is (1) en route to pick up a TNC passenger; (2) transporting a TNC passenger; 5 Christopher Dolan and the Dolan Law Firm were grantedparly status, with limitations, by way of an e mail ruling on 4pri17,201.4. 6 D.13-09-045 at 30. 5 R.12-12-011 COM/ MPl' / sbf / trl PROPOSED DECISION (Rev. 1) (3) picking up a TNC passenger; (4) dropping off a TNC passenger; or (5) situated in the TNC vehicle while the app is open or the driver is otherwise available to accept rides from a subscribing TNC passenger' Dolan Law Firm supports defining this phrase but suggests changing "whenever the TNC driver is using their vehicle" to "whenever the TNC driver is using a vehicle." Additionally, the phrase "as a public or livery conveyance" should be changed to read "for the Purpose of facilitating the actual or prospective transportation of the public, including but not limited to the time that they initially log onto, open, or otherwise indicate their availability as open and available to accept passengers through, a TNC app, until the driver has logged off, closed the application or otherwise indicated they are no longer available to provide TNC services." Dolan Law Firm asserts this coverage would be similar to what is afforded by other transportation providers such as taxis. Luxor argues that a vehicle become a commercial vehicle as soon as the driver registers his or her vehicle with a TNC. Otherwise, Luxor fears that there is an open invitation for insurance fraud. Lyft does not believe the Commission should create a new definition of "providing TNC seïvices" as the current definition is clear and unambiguous' Additionally, adding the phrase "whenever the TNC driver is using their vehicle as a public or livery conveyance" will create ambiguity with the balance of the Phase I decision. The app onf app off concept will also throw the entire regulatory framework into chaos as the decision contemplated a nexus between the provision of transportation for compensation and the concept of providing TNC services. There is no universally accepted meaning of the terms " open," "closed," or " avallable to accept rides." -6- R.12-12-011 COM/ }./'PL / sbf / lil PROPOSED DECISION (Rev. 1) PIFC suggests defining the phrase to mean "when participating drivers make themselves available for passengers, which includes, but is not limited to, logging on to the transportation network company's application program, attaching an insignia or logo indicating the personal motor vehicle as providing transportation network services, or having afare-paying passenger getting into or out of the vehicle." PIFC believes this definition will accomplish the Commissioner's goal of removing gaps in the commercial liability coverage. San Francisco Cab Drivers Association opposes the proposed definition and instead believes either the TNC or the TNC driver needs to provide each vehicle with 100% insurance coverage, 100% of the time. SideCar believes the proposed definition is overbroad and would subject TNCs to fraud by unscrupulous drivers and lead to higher than necessary insurance costs. Summons proposes limiting "providing TNC services" to only those times when TNC drivers are en route to a passenger or are transporting a passenger. TPAC suggest that rather than basing insurance upon a limited time frame when TNIC driver has a specific app open, the appropriate Commercial Auto Liability Insurance policy would cover the vehicles being used to provide transportation services at all times. The Commercial Auto Liability Insurance policy should be commensurate with at least the minimum charter-party carrier requirements for TNCs that provide exclusively pre-arranged services. Uber suggests that the Commission should maintain the original language of D.13-09-045 with regard to the period during which commercial TNC third- party liability insurance shall apply. While Uber supports establishing coverage requirements for Period 1 (i.e., the driver" upp is opery but the TNC driver has not yet accepted a request for transportation), Uber argues that the Commission 7 R.12-12-011 COM/MP1. / sbf / Iil PROPOSED DECISION (Rev. 1) should allow the TNCs and the insurance industry to fashion market-based solutions to address the coverage needs during that period. Uber is also concerned about a TNC driver in Period t having contracted with multiple TNCs and keeping all apps open at all times in order to maximize the likelihood of procuring a request for transportation. Uber suggests defining "providing TNCs services" as follows: "\Alhenever the TNC driver is using their vehicle as a public or livery conveyance, which is from the time the TNC driver accepts a passenger's request to prearrange transportation services until the time the TNC driver concludes providing such transportation services to the passenger." As for levels of insurance during Period 1, Uber suggests the Comrnission should mandate coverage "at least at the limits required by state personal auto policies, but leave open the question of who may purchase such coveÍage'" United Taxicab Workers do not believe the proposed modifications will close the TNC coverage gaps. 3.2. Discussion As this is a new industry, the Commission knew that the rules and regulations it enacted might need to be modified as real-time information about TNC operations became known. The Commission also has the power pursuant to Pub. Util. Code S 1708 to modify its decision: The commission may at any time, upon notice to the parties, and with opportunity to be heard as provided in the case of complaints, rescind, altet, or amend any order or decision made by it. D.13-09-045 uses the phrase "providing TNC seÍvices" in a manner that may have caused some confusion. For example, in Application of the TPAC for Rehearing of D.13-09 -045, TPAC argues that the "Decision fails to state whether a TNC driver is considered to be providing TNC services when en route to picking 8 R.12-12-011 COM/ MP1. / sbf / 111 PROPOSED DECISION (Rev. 1) up a passenger, when returning from dropping off a passenger, or when a driver is cruising an area while awaiting a ride request."T The California Department of Insurance has also recognized this potential uncertaintys and has advocated defining "providing TNC services" to cover the following three periods: Period 1 (App Open-No Match); Period 2 (Match Accepted-Passenger Pick-Up); and Period 3 (Passenger in the Car-Passenger has safely exited the vehicle).e As such, in an effort to eliminate uncertainty, the Commission defines "providing TNC services" as follows: TNC services are defined with three periods. Period One is: App open - waiting for a match. Period Two is: Match accepted - but passenger not yet picked up (i.e. driver is on his/her way to pick up the passenger). Period Three is: Passenger in the vehicle and until the passenger safely exits the vehicle. With this definition, we clarify that providing TNC services is not limited to the time between obtaining a recorded acceptance to transport a subscribing TNC passenger or the TNC operator's travel to pick up that subscribing TNC passenger, transport, ot drop-off of that subscribing TNC passenger(s) to l.is/l'rcr /their destination. Instead, this definition is expansive enough to cover all circumstances when the TNC driver is driving andf or waiting to be hired by a subscribing TNC passenger, has accepted a subscribing TNC passenger and is en route to pick up the subscribing TNC passenger, is transporting the subscribing TNC passenger from the pick-up spot to the destination stop, and is 7 Application, at 23, andfî.129. 8 See Department of Insurance letters dated January 10,2011, March 25,2014, and Background \Alhite Paper updated April 1., 201.4. e Department of Insurance letter dated ApriI7,2014. -9- R.12-12-011 CoM/ MP1. / sbf / ltl PROPOSED DECISION (Rev. 1) then again driving andf or the app is open to indicate that the driver is available or waiting to be hired by another subscribing TNC passenger. It is our intent that insurance coverage must be consistent with our definition of "providing TNC services" and during those times that those services are being provided. 3.3. Gomments on lnsurance Goverage in Response to the AGR As stated above this is a new industry and D.13-09-045left the proceeding open in the event new data became available that could assist the Commission in refining our policies to further assure public saÍety, consumer choice, and innovation for the betterment to all Californians. Since the issuance of D.13-09-045 this industry has grown and the Commission has received additional data regarding the operation of TNCs and how TNCs are applying this Commission's directives. For example, the California Insurance Commissioner raised the specter of potential gaps in TNC insurance required by the Commission's decision, including lack of clear requirements for coverage of collision, comprehensive, uninsured/underinsured motorists, and medical expenses. As a result of these uncertainties, there are anumber of different situations where either no coverage or differing coverage may be available, The Commission's top priority in this case and all cases is to protect the public while allowing for customer choice and encouraging innovation. Thirteen parties filed comments in response to the ACR. California Airports Council supports additional insurance requirements at a level similar to other transportation services. The language should also require that airports be listed as additional insured's to protect airport liability when TNCs are operating on airport property. -10- R.12-12-011 COM/ }/PI / sbf / ril PROPOSED DEGISION (Rev. 1) City and County of San Francisco (CCSF) argues that the new definition of the phrase "providing TNC services" should remain apart of the decision's insurance requirement. CCSF believes that the phrase "used as a public livery or conveyance" would add further confusion to the question of when TNC insurance applies to incidents involving TNC vehicles and drivers. CCSF supports additional coverage with the caveat that the comprehensive and collision insurance be $50,000 per person and $100,000 per accident as recommended by the California Department of Insurance. Additionally, CCSF requests that TNC insurance be deemed primary, that the TNC insurance poiicies be made available to the public, and ensure that personal insurance providers are advised of TNC activities of their insureds. Dolan Law Firm argues that instead of the phrase "used as a public or livery conveyance," it should state "TNC vehicles providing TNC selvices" in order to provide consistency throughout the decision. Dolan also supports the additional coverage and limits. Former mayor Willie L. Brown Jr also supports additional insurance coverage requirements such as lJninsured Motorists Coverage, Comprehensive Coverage, Collision Coverage, and medical payments coverage as a safety measure. Greater California Livery Association (GCLA) believes additional insurance coverage requirements are fair and responsible. But GCLA suggests that the commercial coverage be prirnary, transparent to the public, and in force and effect 24hot;us per day,7 days per week. Finally oÍrly " A" rated and admitted carriers be allowed to insure TNCs. -11- R.12-12-0\1 Colvt/ MP:. / sbf / lil PROPOSED DECISION (Rev. 1) Luxor argues for TNCs maintaining full-time primary commercial insurance on all vehicles registered with them for purposes of providing TNC services. Lyft argues that the Commission need not revise the insurance requirements as there is no documented coverage gap. It cites the settled rule that exclusions in insurance contracts will be narrowly against the insurer. (White v. Western Title Insurance Company (1985) 40 Cal. F,d870,881.) Lyft concludes that insurers would be unlikely to prevail if they were to invoke this exclusion to deny a TNC driver's coverage under a personal automobile policy during periods when the driver "is in match mode." PIFC suggests that the TNC commercial liability be primary and clarify that the duty to defend rests with the TNC's primary commercial liability policy. San Francisco Cab Drivers Association (SFCDA) maintains that TNC drivers and vehicles should be required to obtain fuli-time comtnercial livery insurance policies. The coverage limits should be no less than what is required of taxicabs in a given jurisdiction. SideCar disagrees that the proposed coverage limits are appropriate and, instead, recorrunends that the $1,000,000 liability coverage only apply for the period where a ride has been accepted in the app until the ride ends and the passenger exits the vehicle. Contingent third party liability should be $50,000 per individual bodily injury claim and $1,000,000 per incident, and property damage up to $25,000. Contingent collision coverage should be required in the amount of $50,000. Summons opposes any new insurance requirements until the insurance market offers financially viable products to meet those requirements. -12- R.12-72-011 coM/MP1./sbf/Iit PROPOSED DECISION (Rev. 1) United Taxicab Workers asserts having separate personal and TNC insurance policies provides an incentive for driver fraud that may be difficult to detect. Instead, TNC drivers must carry commercial livery insurance. 3.4. Discussion With respect to TNCs, this Commission stepped in to establish basic consumer protection policies in order to promote the safety of passengers, drivers, and the general public. Our role has not been to favor one form of transportation over another. More specifically, we have not chosen to select specific insurance contract language favored by one side or another. Instead, we remain steadfast in promoting safety and consumer choice. In their comments, the taxicab and limousine industries have advocated that we implement a $1 million insurance policy for the TNCs and have stated that such a policy would mirror their own requirements. On the other hand, the personal insurance industry has continuously asked for this Commission to recognize that personal insurance should never have a role in a TNC incident. Finally, the TNC companies' original position was that they would cover the first dollar that was not covered by a driver's personal insurance. To further complicate things, just recently some TNCs have conceded that exclusive insurance would be applicable for Periods 2 &.3, while other TNC companies are advocating that personal insurance companies reject the claim first and then the TNC's coverage would begin. Let's look a little bit more closely at the taxicab industries own policies. Subsequent review indicates that the taxicab industry does not have a unified insurance policy requirement. In fact, only a few cities require a $1 million -13- R.12-12-011 COM/ MP1. / sbf / lil PROPOSED DECISION (Rev. 1) insurance policy.1O For instance, Los Angeles requires taxicabs to carry a policy that covers a minimum of $100,000 per person, $300,000 for more than one person, and $50,000 for property damage.il Next, if we look at the limousine industry's insurance requirement for guidance we find that the amount is set by this Commission and it is a combined single policy of $750,000.t2 Then if we turn to the personal insurance industr/, we are convinced that the industry's soie goalais-à-zls this proceeding has been to make clear to this Commission, the industry, and its policy holders that personai policies would not be applicable for TNC drivers, In point of Íact, the insurance industry is not regulated by this Commission but by the California Insurance Department. This industry can set its own requirements and write its own policies. The coverage issues identified by the insurance industry are the more challenging and complicated to address - but the resolution of them is not n'ithin the jurisdiction of this Commission. They can, and appropriately should, be solved by the personal insurance industry who can create more tailored products to meet this growing demand. To this end, we applaud Lyft and Metlife Insurance for working together and proffering potential products that would provide insurance for Lylt drivers and passengers in a recent filing with the California Department of Insurance.l3 While we carefully evaluated and considered the comments presented by the varying constituencies, it is our responsibility to focus on ouÍ role to promote 10 See comments of Uber Techlologies on behalf of Raiser (UberX) on the proposed decision at2. 11 Los Arrgeles Municipal Code7L.L4. 12 CPUC General Order 115F. 13 Comments of Lyft on the proposed decision at 2. -1,4- R.12-\2-011 CoM/ MP1. / sbf / ril PROPOSED DECISION (Rev. 1) safety of passengers, drivers, and the general public while promoting consumer choice. We are committed to reducing, tf not eliminating, the need for litigation resulting from who is and should be providing insurance coverage for injured parties resulting from TNC services. The policy is (and has been since we issued D.13-09-045 in September 2013) that for Periods 2 &.3 the TNC is responsible for providing insurance. This will be primary insurance with a minimum coverage of $1 million. Again, this requirement can be met in one of two ways; 1) the TNC itself can maintain insurance on its own or 2) a combination of a TNC policy and a driver policy that is specifically written for the purpose of covering TNC services, or portion thereof. For Period 1-, when a driver has multiple apps actively on and is waiting to see which app requests his/her services, we cannot ask for multiple exclusive insurance with the sole duty to defend. In that event, which one will have the sole duty to defend and which one is exclusive when both are on? Our intent is to reduce litigation or better yet eliminate it. We certainly do not want to add to it. Having multiple prirnary / exclusive insurance seems to add to it. And, for this reason, we will adopt excess commercial insurance which will be available during an incident. The TNCs insurance companies may litigate with themselves as to who will be providing insurance. Flowever, \ ¡e hope that in time the insurance companies will solve this issue and create products that will reduce the risk of litigation and provide clear coverage to the injured parties. For this excess commercial insurance requirement, we will adopt Los Angeles' current insurance amount of $100,000 for one person, $300,000 for more than one person, and $50,000 for property damage. While we adopt these rules, we are hopeful that the insurance industry along with its regulator, the California Department of -15 - R.12-12-011 CoM/ MP1' / sbf / lil PROPOSED DECISION (Rev. 1) Insurance, will work together to come up with better insurance products for this growing industry. 3.4.1. The Extent of the lnsurance Requirements Ordered by This Decision We also invited the parties to comment on our pfoposed expansion of the TNC insurance requirements beyond requiring comrnercial liability insurance. Specifically, we asked parties comment on whether the Commission should also require TNCs to carry uninsured/ underinsured, medical, comprehensive, and collision coverage. The Commission has reviewed the comments to the ACR and to this proposed decision. We specifically acknowledge the information provided to us in comments, and confirmed through our own investigation, tirat the additional coverage (i.e. uninsured/underinsured, collisiory comprehensive, and medical payments coverage) we had contemplated is well beyond what is currently required for taxis, limos, and other for hire transportation vehicles. After researching the municipal codes of San Francisco, Los Angeles, Sacramento, Fresno, and Stockton, the California Vehicle Code regulations for taxis and other for hire transportation vehicles, and the Commissions regulations of Charter- party carriers, we find that none of these regulations require such additional insurance requirements.la We also note that the $100,000 per person/ $300,000 for more than one person in commercial liability insurance for Period One is 1a See Comrnents filed by Uber in tesponse to both the ACR and this decision, which reference the SFMTA, LA Municipal Code Section 71,.14, Sacramento Municipal Code 5.136.440, Fresno Municipal Cod.e9-9L6, Stockton Municipal Code 5.84.480, and Califomia Vehicle Code Section 16b00; Lyft's Comrnents to this decision, at7-9; and Sidecar's Comrnents to this decision, at 6-8. -1,6- R.12-12-011 CoM/MP1./sbf/1il PROPOSED DECIS¡ON (Rev. 1) consistent with the coverage limits imposed by LA Municipal Code Section 71,.1.4 for taxis with a seating capacity of 1,-7 passengers.ls We are concerned, therefore, that imposing these additional coverage requirements (i.e. uninsured/ underinsured, collision, comprehensive, and medical payments coverage) may make it difficult to for TNCs to satisfy these requirements through the existing insurance market, thus inhibiting the creative environment that has allowed the TNC industry to flourish in California for the benefit of California residents who wish to avail themselves of TNC services. Instead, we believe that tailoring the commercial liability insurance requirements to our clarified definition of "providing TNC services" should provide sufficient coverage protections consistent with those protections afforded to passengers of taxis, limos, other for his transportation carriers, and Charter-party carriers. Of course, the Commission reserves the right to revisit this issue should factual circumstances change or if we are directed by the Legislature to impose additional insurance requirements.16 3.4.2. Summary of Required lnsurance Coverage We summarize in the chart below the coverage, types, purposes, and amounts: 1s See Uber's Comrnents to the ACR, Exhibit A, and Uber's Comments to this decision, at 2 and 5. 1o The Comrnission acknowledges that Assembly Bill (AB) 2293 (Bontlla), which contains insurance requirements for TNCs, is making its way through the legislative process. As we do not know what the final version of AB 2293 wlifl. require, we are prepared to adjust this decision as our legislature directs in the event the final bill contains requirements different than those contained in our decision. -17 - Segment of Providing TNC Services Typ" of Coverage Required Amount Period One: App is open - waiting for a match Excess Commercial liability coverage to protect the TNC and the TNC driver against bodily injury and or property damage claims brought by third parties $100,000 per person and $300,000 for more than one person, and $50,000 for property damage. Period Two: Match accepted - but passenger not yet picked up Primary Commercial liability coverage to protect the TNC and the TNC driver against bodily injury and or property damage claims brought by third parties $1,000,000 per incident coveÍage Period Three: Passenger in car - until passenger safely exits car Primary Commercial liability coverage to protect the TNC and the TNC driver against bodily injury and or property damage claims brought by third parties $1,000,000 per incident coverage R.I2-12-011 coM/MP1./sbf/rtl PROPOSED DECISION (Rev. 1) -18- R.12-12-011 COM/ MP1' / sbf / Itl PROPOSED DECISION (Rev. 1) We require that each TNC file their insurance policies under seal with the Commission as part of applying for a permit. Furthermore, the permit for the TNC will automatically expire upon expiration of the insurance policy unless and until the TNC provides an updated insurance policy and applies to renew its permit. The new insurance requirements will apply upon the expiration of the insurance policies in place or one year from the effective date of this decision, whichever is sooner. In the meantime, we encourage the insurance industry to create new products specific to TNC drivers. As such, a TNC may satisfy the insurance requirements, prescribed by these regulations, by one of the following: 1,. Maintaining such insurance on its own/ or 2. With any combination of a policy maintained by the TNC and a policy maintained by the TNC driver that is specifically written for the purpose of covering TNC services, or portion thereof. such combination of policies must meet the minimum limits required by these regulations. In phase II of this proceeding we will consider whether these policies for both TCP as well as TNC certificate holders should be made public and included in the Commission's website' 3.4.3. Applying the Modified lnsurance Requirements to uber Technologies, lnc. 3.4.3.1. Comments regarding apply¡ng modifications to uber Technologies, lnc. The California Airports Council supports applying the proposed modifications to Uber Technologies, Inc. Dolan supports applying the insurance modifications to lJber but also wants them to apply to Raiser-Ca. LLC. Finding of Fact fl 26 should also be changed with the phrase "while they are providing Uber services" added at the end following the phrase "incidents involving vehicles and drivers." This same -19 - R.12-12-011 COM/ MP1' / sbf / ltl PROPOSED DECISION (Rev. 1) change should be made at Finding of Fact fl 13. Finally, Dolan suggests that the commercial liabitity coverage be a primary "nonwasting policy" so that defense fees and costs do not eat away at the policy limits. SFCDA agrees that these modified insurance requirements should apply to IJber. Uber disagrees, reasoning that as the TNC insurance requirements already apply to Uber's TNC subsidiary, Rasier-CA LLC, there is no need to apply them to Rasier's parent entity, Uber. Uber also believes the question is premature as the Commission deferred issues regarding whether Uber should be regulated as a TCP to Phase 2. United Taxicab Workers argues that Uber should be required to carry commercial livery insurance on all its vehicles. 3.4.3.2. Discussion We are persuaded by Uber's comments. The fact of the matter is that Uber Technologies has multiple transportation offerings, however, only UberX (Raiser) provides TNC services. The other transportation offerings are licensed as limo drivers and regulated by this Commission. For instance, offerings such as Uber or Uber Black or ljber SIIV are all and should be licensed professional drivers and required to carry coÍunercial insurance of at least $750,000' Therefore, this decision will require Uber Technologies' subsidiary UberX (Raiser) to comply with the modified requirements. We will consider whether l;ber Technologies should be a TCP itself in Phase II of this proceeding. 4. All Ex Parte Gommunications Must be Reported in this Quasi-Legislative Proceedi ng. The above-mentioned ACR also asked for comments on a proposal to treat all communication regarding this proceeding with Commission Decisionmakers -20- R.12-12-011 CoM/ MP1^ / sbf / ttr PROPOSED DECISION (Rev, 1) subject to the reporting requirements of our Ex Pørte communication rules (Rule 8.4). 4.1. Comments on Ex Parte Gommunications California Airports Council supports making Rule 8.4 applicable to this proceeding. CCSF supports reporting oÍ ex pørte communications in this proceedin g. Lyft sees no reason for the Commission to depart from its ex pørte rules. SFCDA supports requiring the reporting of ex pørte comrnunications. SideCar opposes the reporting requirements as they will stifle and hinder the free and abundant communication between Commission staff and the TNC industry Summons supports having the reporting requirements cover meeting minutes of the Insurance Working Group. TPAC supports making tlne expørte reporting rules applicable to this proceeding. United Taxicab Workers argues that all ex parte communications should be reported. 4.2. Discussion Normally in any quasi-legislative proceedinS, " ex parte communications are allowed without restriction or reporting requirement." (Rule 8.3(a) of the Commission's Rules of Practice and Procedure.) But the Commission does have the authority "in special cases and for good cause Shown," to "permit deviations from the rules." (Rule 1'.2 of the Commission's Rules.) In this instance, we believe there is good cause to deviate from Rule 8.3(a) and, instead, require that all ex parte communications between interested persons and decisionmakers be reported pursuant to Rule 8.4. The TNC industry is in a constant state of change in terms of its operations and regulation. To the extent any "interested person"tz wishes to bring information about any of the above 17 Pursuant to Rule 8.1(d), "interested person" means any party to the proceeding or the agents or employees of any par$; any person with a financial interest, as described in Government -21,- 5. R.12-12-011 CoM/ MPl' / sbf / IIl PROPOSED DECISION (Rev. 1) topics - as well as other topics not listed above that are relevant to this proceeding- to a "decision-maker,"18 we believe that it is vital to the assurance of due process and to the orderly and efficient dissemination of information that all parties to this proceeding receive notice of the communications in accordance with Rule 8.4. Gomments on Modified Decision The proposed modified decision of the assigned Commissioner in this matter was mailed to the parties in accordance with Pub, Util. Code $ 311and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. The following parties filed comments on June 30,201'4: ACIC, Lyft, PIFC, San Francisco Cab Drivers Association, San Francisco International Airport and SFMTA, Sidecar, TPAC,IJber, and United Taxicab Workers' ACIC has proposed clarifications to the definition of providing TNC services, and when the duty of excess coverage is triggered. ACIC also asks the Commission to specify the duty of indemnification.le Lyft believes that the decision is adopting an expansive and unworkable definition of providing TNC services. Lyft also objects to the decision on the grounds it imposes " arbitrary and unreasonable levels of insurance on TNCs which would far exceed those imposed on other passenger carriers, including TCPs and taxis[.]"zo Code S 871-00, et seq.; or a repïesentative acting on behalf of any formally organized civic, environmental, neighborhood, business, Iabot,frade, or similar association who intends to influence the decision of a Commission member on a matter before the Commission. 18 Pursuant to Rule 8.1(b), "decisionmakef" means "any Comrnissioner, the Chief Adrninistrative Law Judge, any Assistalt Chief Administrative Law Judge, the assigned Adrninistrative Law Judge, or the Law and Motion Adrninistrative Law Judge'" 1e ACIC Comments, at 3-5. 20 Lyft Comments, at 1. -22- R.12-12-011, CO}/r / MP1. / sbf / Iil PROPOSED DEGISION (Rev. 1) PIFC supports the decision in a number of ways but suggests clarifying language regarding the definition of providing TNC services, the maintenance of commercial liability insurance, and the TNC's insurer's duty to defend.21 San Francisco Cab Drivers Association opposes the decision on the grounds that the proposed insurance requirements are insufficient because they provide less than full-time commeÍcial livery insurance-z2 San Francisco International Airport and SFMTA supports the Comrnission's efforts to close the gaps in current TNC insurance coverage requirements but ask that the definition of providing TNC services be expanded to include all times those TNC vehicles are on airport property, regardless of whether an app is on or off, or whether the TNC driver has a passenger.23 Sidecar argues that the proposed insurance requirements are unjustified and unreasonable as they are not tailored to TNC activities, and would impose requirements beyond what is required by municipalities and this Commission for other transportation services.2a TPAC's comrnents go well beyond the scope of what was covered by the ACR and this decision, and instead appears to be rearguing points it has raised in the Court of Appeal and the California Supreme Court.25 These comments are beyond the scope of the decision and shall not be considered. We do, however, consider TPAC's comment that TNCs argument that TNCs should be required to maintain primary coÍunercial insurance commensurate with Charter-party 21 PIFC Comrnents, all,-3. D SanFrancisco Cab Drivers Association Comments, atl-4' 23 Sar Francisco International Airport and SFMTA's Comrnents, at 1' 2a Sidecar's Comrnents, at 3-8. zs TPAC's Comments, at 3-10. -23- R.12-12-011 coM/MP1./sbf/tl PROPOSED DECISION (Rev. 1) carriers and taxis.ze Finally, TPAC suggests tha the ex parte reporting rules adopted by this decision should be applied retroactively.zz Uber, as we have noted above, argues that the originally proposed insurance requirements go beyond what is currently required for Charter-party carriers, taxis, limos, and other for hire modes of transportation.2s Uber also objects to the inclusion of Period One in the definition of providing TNC services.2e Instead, Uber argues that coverage for Period One can be satisfied with the imposition of lesser insurance amounts.¡o Finally, Uber asks that the Commissionnot extend tl'rc expørte rules to quasi-legislative proceedings such as this proceeding.at United Taxicab Workers oppose the decision on the ground it does not provide the widest scope of coverage because it does not address the period when a driver has his/her app turned off but is nonetheless working.:z They also argue that TNCs should car:ry full-time colilnelcial livery insurance.33 Where appropriate, the Commission has made edits to this decision based on some of the comments. Where comments have not been incorporated, they shall be deemed rejected. zr' Id., at12-13. zz Id., at13-14. 28 ljber's ComrrLents, at 4-9. zs Id., at9-L0. to Id., at12-14. sI Id., a116. 32 United Taxicab Workers Comments, at2-3. zt Id., al4-5. -24- R.r2-12-011 coM/MP1./sbr/ri1 PROPOSED DECISION (Rev. 1) 6. Assignment of Proceeding Michael R. Peevey is the assigned Commissioner and Robert Mason III is the assigned ALJ in this proceeding. Findings of Fact 1,. D.13-09-045 did not adequateiy define the phrase "providing TNC services." 2. Parties have differing interpretations of the phrase "providing TNC services." 3. The California Department of Insurance has advocated a definition of "providing TNC services" that is different than how some insurance companies have defined "providing TNC services." 4. Some parties have taken the position that a TNC driver's personal automobile insurance will not apply to an incident arising out of the TNC driver "providing TNC services because of the presence of the public conveyance or livery exclusion. 5. Uber Technologies has multiple transportation offerings, however, only UberX (Raiser) provides TNC services. 6. The other transportation offerings by Uber Technologies are licensed as limo drivers and regulated by this Commission. 7. All Uber offerings other than UberX such as lJber or llber Black or lJber SUV are all and should be licensed professional drivers and required to carry commercial insurance of at least $750,000. 8. Communications between "interested persons" arrd"decision-makers" have occurred during this proceeding without notice to other "interested persons" and without any reporting of the communications. -25 - R.12-12-011 COM/ MPl, / sbf / Itl PROPOSED DECISION (Rev. 1) Conclusions of Law 1. TNC services are defined with three periods. Period One is: App open - waiting for a match. Period Two is: Match accepted - but passenger not yet picked up (i.e. driver is on his/her way to pick up the passenger). Period Three is: Passenger in the vehicle and until the passenger safely exists vehicle, 2. A minimum of at least $1 million primary commercial insurance is required for Periods 2 & 3. 3. A minimum of at least $100,000 for one person, $300,000 for more than one person, and $50,000 for property damage of excess commercial insurance is required for Period 1. 4. The modified insurance requirements should not be applicable to Uber Technologies, but shouid apply to its subsidiary UberX which provides TNC services. ORDER IT IS ORDERED that: 1. Transportation Network Company (TNC) services are defined with three periods. Period One is: App open - waiting for a match. Period Two is: Match accepted - but passenger not yet picked up (i.e. driver is on his/her way to pick up the passenger). Period Three is: Passenger in the vehicle and until the passenger safely exists vehicle.3a 3a We have heard from at least one airport that it requires that the app stay on until the TNC driver has left airport property. As we stated in D.13-09-045, the TNCs must follow any and all airport regulations the TNCs must keep the app on for any airport that has a requirement that the app stay on after the passenger has been dropped off and ca-n be turned off no sooner than when the TNC driver has left airport property. Additionally, it should be noted that with respect to the three periods listed above, TNC service would still continue in all situations after a passenger has exited a car provided that the driver's app is still open -26 - R.12-12-011 coM/MP1./sbf/tit PROPOSED DECISION (Rev. 1) 2. A minimum of at least $1 million primary commercial insurance is required for Periods 2 & 3. 3. A minimum of at least $100,000 for one person, $300,000 for more than one person, and $50,000 for property damage of excess commercial insurance is required for Period 1. 4. This insurance requirements can be met in one of two ways; 1) the Transportation Network Company (TNC) itself can maintain insurance on its own or 2) a combination of a TNC policy and a driver policy that is specifically written for the purpose of covering TNC services, or portion thereof. 5. The modified insurance requirements applies to Uber's subsidiary Raiser (UberX). We will consider whether Uber Technologies itself should be a TCP in Phase II of this proceeding. 6. Only UberX from the various Uber Technologies offerings is permitted to provide TNC services. 7. Al1 other Uber offerings except for UberX should be licensed TCP drivers with an active permit from this Commission. 8. We require that aII ex parte comrnunications between interested persons and decisionmakers be reported pursuant to Rule 8.4 of the Commission's Rules of Practice and Procedure. 9. Rulemaking12-12-011- remains open. This order is effective today. Dated at San Francisco, California, -27 - €ttttêÍ B BILL NUMBER: AB 2293 AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 28, 2OL4 INTRODUCED BY Assembly Member Bonilla FEBRUARY 21, 2OT4 "tn aeÈ Èo amend SeeÈion 11580,24 of Ëhe Insuranee €ode¡ jrff3tÊãÊeæ(}treiaqe_ Anact to add Chapter 8.5 (commenclng with Section 5430) to Division 2 of the Pultl,jc Util-ities Code, relatinq to transportation. LBGISI,ATIVE COUNSELIS Df GEST AB 2293, as amended, Bonifla. vehiele insuranee eoverage: personaÌ vehiele sharing- Transportation network companies: insurance coveraqe: disclosúre ' tlnder existing Jaw, the Passenger Charter-party Carriers' Act, the PuÌ¡l-ic Utifities Commjssion has adopted rufes and reguTations relatíng to pubJic safety risks in the operation of transportation services utiTizinq transportation network companies. Those reguJations define a transportation network company ds an organlzation operatinq in California that provides prearranged transportation services for compensatlon using an onfine-enabl-ed pJ-atform to connect passenqers wíth drivers uslng theit personal vehicLes, Existing regulations of the commissjon require, amonq other things, a transportation network company to acquire a commerciaf lial>iLity poTicy for incídents invoJving transportation network company vehicLes and drivers in transit to or during a transportation network company trip. This bifl- woufd more broadTy deflne "transportation network company" by excTuding the requirement that a transportation network company trip be prearranged and woufd require a transportation network company to disclose jn writing to participating drivers, as part of its agreement wíth those drivers, the insurance cowetage and l-imits of l-iabifity provided by the transpottation network company and to advj.se a particípating driver in writing that the driver's personaT automobífe insurance poJ-icy may not provide coveraqe whíLe the driver makes himseff or herseJ-f avaiLabLe for transportation network company servíces. ExisÈinq law prehibiÈs a privaÈe passenger moËor vel¡iele; as defined¡ frorn beíng elassified for inst*ranee purposes as a eormnere*aÌ¡ for hirer permissive use veh{e}e¡ er }iver}¡ so}e}l¡ on Èhe by persena+ -q-eh+e+e ewnínq and operaÈing Èhe vehiele- and Ëhe personal vehiele sharing is eondueËed pursuanÈ Ëo a persona] vehíele sharing proqram, This bíì] tsould mal<e ËeehnieaÌ¡ nonsubsËantive eharges Èe Ëhose Vote: majority. Appropriatj-on: no. Fiscal committee: no' State-mandated l-ocal- prog'ram: no. THE PEOPLE OF THE STATE OF CALIFORN]A DO ENACT AS FOLLO!{S: SECTION 7 Chapter 8.5 (commencing with Section 5430) is added to Dlvisíon 2 of the Pubfic Util-it1es Code , to read: CHAPTER 8,5, TRANSPORTATION NETWORK COMPANIES 5430, ,4s used 1n this chapter/ a "transportation network company" is an organization, incTuding, but not Limited to, a corporation, partnershlp, or sofe proprietor, operating in CaLifornia that provides transportation se¡vices for compensation uslng an onfine-enabLed application or platform to connect passenqers with drivers using their personal vehicl-es. 5437. A transportation network company shal-l- discLose in writing to participatinq drivers, as part of its agreement with those drívers, the insurance coveraqe and Limits of liabiTity that the transportation network company provides whiLe a driver makes himsel-f or hersel-f avaifabfe for transportation network company services, and shafl advlse a participatinq driver in writing that the driver's personal automobiLe ínsurance poLicy may not prowide coveraqe whil-e the driver makes himseLf or herseLf avaiLabfe for transportation network company services. ----€Egf+€+l+ 11590'24- (a) * privatse passenger moÈo- vehiele ínsured b!¡ iÈs 11580-2 shall neÈ be elassified as a eonrnereia] vehiele¡ for hi-e vehiele; permissive use vehiele¡ or ]iverl¡ solely beeause iËs ewrer allov¿s iÈ Ëo be used for personal vehiele sharinq if aÌì of Ëhe followinq eíreumsÈanees appìl¡: (1) The persenal vehiele sbari-rg is eondueËed pursuarÈ to a @Êñg--pË€Eraft- qeneraÈed bl¡ Ëhe personaì vehiele sharing of Ëhe veliiele does noÈ å insuranee¡ mainÈenanee¡ par]<ing,¡ fuel¡ eleaníng auÈomobíle repair¡ eompuÈer hardware and sefÈr+are¡ signaqe idenËifying Èhe vehiele as a ry lcnor¿inq}l¡ plaee Ëhe vettiele inÈo eonrne-eiaÌ use; as de€i-red bÌ¡ i-ñ @ÈñE- moËor veh+e+es b i,ft eenneeÈien wiÈlr- a persenal vehiele sharing pregram' (3) "ÐrivaÈe passenger mo€or vehiele" means a vehiele ËhaÈ is ÌiabiliËl¡ insuranee polie!¡ insurinq a sing'e individual or i meeÈs Èhe requ+rem (e) A personal vehiele sharinq program shalì¡ €er eaeh vehiele ÈhaÈ 4È faeiliËaÈes Èhe use of; do all of €he fellot¿inql (1) Ðurir¡g aÌÌ Ëímes tshaÈ Èhe vehíele is engaqed irr-ersenal vehiele sharínq¡ provide insuranee eoveraqes €er the vehiele and Èimes Èhe minimt*m insuranee requiremenËs fer privaÈe passeng'er vehieles, eomplianee wiÈh Èhe Èerms and eondiÈions of Èhis paraqraph reee{ÉeFi (2) Ðrovide Èhe reqisÈered owner ef Èhe vehiele leiÈh a ÐeparÈmenÈ of MoÈor Vehieles Form REG 5085 or oÈher suiÈable proof ef eomplianee wiÈh Èhe insuranee requiremerÈs of Èhis seeÈion and Èhe requiremenÈs of Ëhe ealifornia Finaneial ResponsibiliÈ!¡ Lar¿ in SeeËion 1656,2 of by Èhe veh+e+e's r @iaq--efo9-Faft- Ê3) ee]leeËr mainÈain¡ and mal<e available Èe Ëhe velÉele's owner¡ as required by law¡ aÈ Èhe eosë of Èhe personal vehiele sharing iníÈial and final loeaÈions ef Èhe vehiele¡ and miles driven when Èhe vehiele is under Èhe eonÈroÌ of a person oÈher Èhan Ëhe vehiele's i-n-g--p-r€gram-- (4) Provide Ëhe vehiele's ot¿ner and anl¡ f¡erson ËhaÈ operaËes Èhe vehiele pursuanÈ Ëo a personal vehíele sharing proqram l¡åÈh a diselosure ËhaÈ eonËains informaÈion explaining Èhe Èerms and .i-en-.- (5) NoÈ l<neluing]}¡ permiÈ Èhe vehiele Èo be operaÈed for eormnereial use b}¡ a personal vehiele sharing user while engaged *n personaÌ w (7) FaeiliÈaÈe Èhe ins€allaËion¡ operaÈion¡ and mainÈenanee of eompuËer harehrare anel sofÈi¿are anei signaqer neeessary for a vehiele Èo be used in a personaÌ vehiele shar*ng program¡ inelttding palnnenÈ e€ Èhe eosË of damaqe or ËhefÈ of ÈhaÈ equípmenË and anl¡ damage eaused Èo Èhe vehíele by Èhe insÈallaËion¡ operaËion¡ and mainÈenanee @ (d) l{eÈvsiÈhsÈandirrg an}¡ oÈher }als or anl¡ prov{sion ín a privaÈe passenger moÈer ve evenË of a loss or inJury ËhaÈ oeeurs e*urinq a Èirre perioel when Èhe vehiele is une*er Ëk'e operaËion anel eonÈro}. of a personr oÊher Ëhan i-n-9--ereg.rûm-r----ôr oËheiwise uneler Èhe eonËrol of a personaì vehiêle sharing programt Èhe otqner and shall be eonsidered Èhe oltrer of Ëhe vehiele fer aIÌ Btrrpeses, NoÈh+ÌÌg Bersona+ veh+e+e s resuìÈ in injurl¡ Ëo an!¡ perse'rs a^ a resulË et Ëhe use or operaÈiort of a personar vehiele sharinq pregram- (e) A persona] vehiele sharing program shall eonÈinue Èe be ]iable ÞursuanË Èe subd+ iffE---o€€tlr-t- (l) The privaÈe passerrger moËor vehiele rs reËurned Èo a ]oeaÈ'on iñg-Ë€gr.âft- (2) The earliesÈ of one o€ ËLre followinq oeeursl (A) The expiraÈion of Èhe Èime period esÈablished for Ëhe Bare+eu+ar use of e (B) The inÈenË Èo ÈerminaËe Ëhe persona] vehiele sharing use is verifiabll¿ eonmunieaÈed Ëe Ëhe personal vehiele sharirg program, (e) The vehiele's owner Èakes possession and eonÈroÌ oÉ Èhe .*ehi-ele- (f) The persenal vehiele sharínq program sharl assume }íabiliÈy for a elaim in whieh a dispuÈe exisÈs as Èo whe wa- ir eonËrol of Èhe vehiele when-Èhe ìoss oeeurred givinq rise Ëo Èhe e4aim and Èhe vehiele's privaÈe -^assenger meÈor vehieÌe insurer shall indermifl¡ Ëhe Þersofta+ veh+el }€û under Èlre a*plieable insuranee poliel¡¡ if iÈ ís deÈermined ÈhaÈ Èhe I ^^^ Èhe vehåele is under Èhe operaÈion and eonÈrol of a person¡ oÈher Èhan Ëhe vehiele's owner¡ pursuanÈ Èo a persenar vehiele sharing ing i-s-i-ens (h) NoÈr¿iÈhsÈanding an!¡ oÈher lar¿ or ant¡ previsien in a velriele owner's auËomobile liabiliÈy insuranee poliel¡¡ rshile a privaÈe Bassenqer motor ve ÞursuanË Èo persen vehiele sharinq program¡ all of Èhe foÌìowing shall appl!¡: i€s-1>oli€1r- (2) The prima-!¡ and exeess insurer or in:urers of Èhe ownersz operaËors¡ and mainÈainers of Ëlre ^rivaÈe passenqer meËor vehiere B€-r€€ff---€.r--€.rgûff-t zaÈ+on €or ++ab use of Èhe vehiele ir a persona] vehiele sharing program- (i) |{o pe}*e}¡ ef insuranee ÈhaÈ is subjeeÈ Ëe SeeËion 11580,1 or 11580,' shall be eaneeled¡ voided¡ ËerminaÈed¡ reseinded¡ or vehiele has been made avaílable for personal vehiele sharing pursuanÈ Ëe a personal vehiele sharing proqram ÈhaË ís in eorrflianee wiÈh Èhe pro.ri-s-iæi-en-- Lù/0L/ 2014 eù-ED l5r 21 FAX Eyutâ¡r c Øoo1/oor License #0H78592 Phone1530.888.7300 Toll Free1866.664.8294 Faxl530-888.7813 krystle@goldcanyo nins. com October 1,2A14 City I Bufldog & Yellow Cab AlMakki 1356 North Abby Street Fresno, CA 93703 Dear Af, I regret to ínform yor-r that at this time we do not have an insurance product available to insure a vehicle operating as an UBER. The Commercial lnsurance industry has not developed a product to insure this type of operation at this time. AIso, please be aware that a PersonalAuto lnsurance Policy will not cover a vehicle operating as an UBËR. Personal Auto Policies will exclude coverage when the driver is transporting passengers for a fare. Please g've me a callwith any questions or concerns.o Iy, 494 ELtTltr'!¡ENÜEIluburn C.ã.95603 Pupule UrlLl?lEs Cal*M ¡ssloN ÊÍA!l, üì: cÂLtÈQRtJìÅ 5$ri ':êl'i f¡*$"$ ÅVlÑij= SAN ËR¡\¡¡Li*qaii" f¡\llÈûRf'llÀ s* I{i¿ lvì*c¡r*al R. FgeveY F=ã5tÞ=È{i ËÂv r4 t 5) 7C3-3? O3 {415ì 7Ð3-ãC9l Ju¡ru: 10. 2{}1'1 Travis K*hnick lìberX I t? lånr'vard Street ji8 San Francisco, Cìr\ I'itû5 RE: Transportâtièn Netrror"k Comp*nie"t ()perating in California Denr futr. Kalanick: ÇJ* Seprr:arber 19, 1013, tl¡e C*lifor*ia llublic LJtiiities C'ornurissian (CSUC) apprnved a rjecisi<m to allcr+.'liamsportaticn Netn ork {ìcmplnies t(} oFeÌ*te in Califi¡rrria prar.ided that certain requiruments ìr*cre *tlnpteil to e¡ìsur{: titc snlbty of'passettgcrs. drivet's. and peclestriittts. We *doptrrd * crìlr:innl barckgrnund chcck. a clriver truinir:g prûgrarn. a car ir:s¡:ectior:. i:rsr¡ra*ce. nnd having a driver's license. åìmÕ¡rg olì:er protcetinns, Thcse salhty requirerxertts should ¡ot hindcr yaur creativity nor should tlre-v inrpecls yeur inirovrtion. I'hcse are saf'ety measures lû protect the very custoRrefs ycìü arÐ tryiî:g ter serve. as r'vsll¡¡s drivers. I"lorvel'et, since the issuançe olthe CFIÌC's decision wu lïrvt: heard nurnenlus cnm¡rl¿¡ints tlti¡t thcsu saiety il-¡les a¡e be ing ignored. {)n Junc 4. 2014. sevun n:eurbers ol¿h¡: CPli{l-: stallì including eiur lixecutive l)irectùr. mr{ w.ith lar+ e*fì:¡eem*nt personnel fr*nl iìvç: mniar C¡rlifarni* aìrports: L.os Ang*les International. üal¿land Intçrnational. S*n Diego lutcrn¡rtiùn¡rl, S¿:n Frnn,risco Internation¿rå. and San Josc Internation*l, Airpr:rt pursr:nn*l ttescrihect fimner{ìus cüntÍiüls thrrt air'¡rorr polir^c havc had \r,ith yeiur drivers û\¡€t'¡þçr ¡:$s{ ,vear nt tlr*sc nirpnrts. "fh* airportri have sucng cl*cumcnfirry cvidenee theÉ your elrivers hnve trcctr *p*rrati*g nt airprrts rvitl:*ut a* air¡roñ ¡rcrntit. In the CPtj(l's Se¡rtenrher elecision rve ¡nitde clear that *¿¿ch 1"N( rnust *biile by* the *ir¡reirts ru[*s- Specifically we adopted this explicit rule: Operations at Airports: TNCs shall not conduct any operations on the property of or into any airport unless such operations are authorized by the airport authority involved. San Francisco International Airport reported that out of approximately 300 contacts it has had with drivers for TNCs (the majority of whorn were UberX drivers), 70 percent of the cars did not display proper "trade dress" on their vehicles. Moreover, none of your firms have obtained a permit from the airports to transport passenger¡¡ to or from airport facilities. Decision l3-09-045 specifrcally requires TNCs to obtain such permits, In addition, numenous TNC drivers did not have proof of insurance on their p€ßons, and TNC drivers have been repeatedly observed picking up passengers at various airports even though doing so violates local ordinances. Officers at various airports have also observed individual TNC drivers ransfening their "app" ftom one driver to another-both of whom are using the same vehicle. Further, two of the drivers that San Francisco airport officers had contact with did not have valid dríver's licenses. Asked for an explanation of their behavior, many of the drivers stated they did not know what they were doing was illegal, or that a permit was required before a TNC could pick up a passenger at an airport. This letter is being sent to put you on notice that all of the above described behaviors violate Decision l3-09-045 and place the permit you have been granted to operate by the CPUC in jeopardy. If the CPUC determines that you have been out of compliance with D.13-09-045, or any of the express provisions of the permit itsell the CPUC may revoke your permit to operate. I would like to express my personal disappoinnnent and concem about this behavior. Califomia is the first state that created rules for this industry to promote consumer choice, we will not, however, accept consumer choice at the expense of consumer safety. lf you believe these claims are unjust, please inform my office no later than June 17,2014,in letter form. lf immediate actíon is not taken to bring your operation (and the actions of your contractors) into compliance with the express provisions of D.l3-09-045, the CPUC will begin enfo¡cement actions (including revocation of your permit) in the near future, I have directed the CPUC's investigative unit to begin random audits of your operations. Within two weeks of this letter I expect ftrll compliance with each of the measures adopted in D.l3-09-045. A copy of the rules is attached to this letter for your convenience. Sincerely, President Cc: Commissioner Michel Peter Florio Commissioner Catherine J.K. Sandoval Commissioner Carla J. Peterman Commissioner Michael Picker Paul Clanon, CPUC Executive Director Matzia Zafa4Dìrector, of Policy & Planning Division, CPUC Denise Tynell, Actinþ Director, Safety & Enforcement Division, CPUC Jason 7æller, Attorney, CPUC Selina Shek, Attorney, CPUC Shanna Foley, Attorney, CPUC Los Angeles International Airport Oakland International Airport San Diego International Airport San Francisco International Airport San Jose International Airpon ,? il CEIVED Agenda ltem: lD#14-567 (3245 P.M.) ¡liil t!Üri i S Pn n ?g Date: LUzolL4 crTy cLERn, FRrsNo sREsNo clTy couNclL City ofEEDEêI.ISI/¿fffE=iEz¿¿N- Supplemental lnformation Packet Agenda Related ltems - lD#t4-567 (3:45 P.M.) Supplemental Packet Date: November 2O,2Ot4 Item(s) Appearance by George Aguilar, Al Makkai, Juan Bejar and Mario Soto to discuss the operation of the transportation company UBERX and why the company is not subject to the City of Fresno's taxi Supplemental lnformation : Any agenda related public documents received and distributed to a majority of the City Council after the Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600 Fresno Street, during normal business hours (main location pursuant to the Brown Act, G.C. 54957.5(2l,. ln addition, Supplemental Packets are available for public review at the City Council meeting in the City Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City Clerk's website. Americans with Disabilities Act (ADA| : The meeting room is accessible to the physically disabled, and the seruices of a translator can be made available. Requests for additional accommodations for the disabled, sign language interpreters, assistive listening devices, or translators should be made one week prior to the meeting. Please call City Clerk's Office at 621.-7650. Please keep the doorways, aisles and wheelchair seating areas open and accessible. lf you need assistance with seating because of a disability, please see Security. ADDENDUM TO PROPOSAL Honorable members of the Fresno City Council, please consider this an addendum to our previous written proposal as submitted November 5,2OL4, with regard to the issue of requesting the Council to prohibit the operation of "Transportation Network Companies", hereinafter "TNC's", in the City of Fresno. We incorporate herein all statements from our previous written presentation. A82293, as part of the Passenger Charter-Party Carriers Act, has been signed into law by Governor Brown. The new law, however, has great shortcomings with respect to providing ample insurance coverage for passengers. Although it ensures that personal auto policy holders will no longer cover commercial activity of TNC's, it lowers the primary in coverage requirement in the frame time known as "App on the Watch" to S50,000/S100,000/530,000 with excess coverage of only 5200,000.00. The law allows for an expedited approval process for INC insurance products that hove yet to be developed. As such, implementation of the new law is delayed until July L,2OI5 in order for these new products to be developed. ln the meantime, the public is at risk because of dubious insurance coverage and policy limits that are inadequate in comparison with the coverage traditional taxis must obtain. Another bill regulating ride services,48612 from assemblyman Adrin Nazarin, D-Van Nuys, which would have toughened requirements for back round checks and drug/alcohol testing, failed to pass out of the Transportation Committee. This bill would have required TNC's to obtain driver back round checks from the state Department of Justice and driving record information from DMV. lt would have required periodic drug and alcohol screening and barred TNC's from hiring drivers within 7 years of certain felony convictions such as fraud, forgery or larceny. All of these requirements are identical to those that traditional taxi drivers must comply with so as to ensure the public safety. .ff.I I¿JT 101 cofO Cl ^J =.Ll t-r ß lll=CJ2E ¿Il-l :> c)É- (- ¿-F =ı Again, thank you for your consideration. Respectfully subm Taxicab Owners and Drivers of Fresno 77- 637/ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-582 Agenda Date:11/20/2014 Agenda #: SCHEDULED COMMUNICATION November 20, 2014 TIME 10:15 A.M. SUBJECT Appearance by Parvis Laghaifar to discuss who is responsible for the expenses of moving a signal light at the corner of Shaw and Polk City of Fresno Printed on 12/16/2022Page 1 of 1 powered by Legistar™ 6t)'vJ RECEIVED REQUESTTO APPEAR BEFoRETHE FREsNo ctwcouNctL¡il1T tti 23 Rn 11 25 CITY CLERK, FRESNO CA On April 1, 1980, the Fresno City Council adopted a policy relating to procedures to be used for those persons wishing to appear before the Fresno City Council, as follows: SCHEDULED ORAL COMMUNICATIONS - APPEARANCES ON PRINTED AGENDA ln order to be placed on the agenda for a scheduled time, complete and submit the form below. State the topic to be discussed and provide any supporting material, if any. Also state the action you want the City Council to take. Your request will be referred to the City Manager and placed on the agenda no sooner than ten (10) days after receipt of your written letter in order to provide an opportunity for City staff to prepare comments for Council consideration. The policy is to limit your presentation to three (3) minutes pursuant to Ordinance 96-67. The City Clerk shall provide copies of your request to the Fresno City Council. U NSCH EDU LED ORAL COMMU N ICATIONS You may address the City Council at the conclusion of the Council meeting and the policy is to limit your presentation to three (3) minutes pursuant to Ordinanceg6-67. Please be present at the conclusion of the Councilmeeting if you wish to be heard. REQUESTTO APPEAR BEFORETHE FRESNO CIW COUNCIL Name Address '? Telephone No.Date: /f &r-rr---n- Lr( ¿et ) 9t LL,z(ð Action (if any):o" 4.L44_þ .v't é?-l) K :\Request to Appear.docx ...yn o-Lq_- l/<¿-4Ä+: City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: REPORT TO THE CITY COUNCIL November 20, 2014 FROM:THOMAS C. ESQUEDA, Director Department of Public Utilities SUBJECT Receive report of findings and summary of discussions from the Recharge Fresno Community Forums and direct City staff to initiate the Proposition 218 hearing process for proposed changes to the schedule of rates, fees, and charges for public water service and setting the public hearing for February 5, 2015, at 5:00 p.m. RECOMMENDATION The Administration recommends that the City Council receive the findings and summary of discussions from the Recharge Fresno Community Forums and authorize Department staff to initiate the Proposition 218 hearing process for proposed changes to the schedule of rates,fees,and charges for public service. EXECUTIVE SUMMARY On July 31,2014,the City Council rescinded the Water Division’s four-year schedule of rates,fees, and charges,which had been previously approved by City Council in August 2013 and in effect since September 2013. Upon rescinding the Water Division’s four-year schedule of rates,fees,and charges,the City Council directed Department of Public Utilities staff to initiate a participatory roundtable process.The purpose of the roundtable process was to foster and undertake serious discussions relative to all project issues,including regional water issues,the scope of city projects,alternatives for financing capital costs,alternatives to the City’s current policy on water,and an evaluation of subsidy options for low or fixed income ratepayers.City staff was also directed to prepare findings and a summary of the discussions from the participatory roundtables.Meeting minutes from the roundtables are attached to this report (Attachment 1),and the following pages summarize findings from the discussions.Finally,the City Council directed staff to develop a five-year rate plan to replace the previously adopted four-year rate plan,and delay enactment of the new five-year schedule of rates, fees,and charges until at least six (6)months following the City Council’s rescission of the previously adopted rates. Based on comments received from the public during the participatory roundtable process,the City of Fresno Printed on 12/16/2022Page 1 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: Based on comments received from the public during the participatory roundtable process,the Department of Public Utilities has developed a new,five-year capital plan totaling approximately $429 million.The new five-year capital plan includes funding for groundwater recharge facilities,pipeline and well rehabilitation and replacement,raw water conveyance facilities,surface water treatment facilities,and finished water distribution facilities.The Department of Public Utilities retained a rate consultant to design a five-year schedule of rates,fees,and charges to recover the Water Division’s forecasted capital,operations and maintenance expenditures.Table 1 summarizes the major issues considered by City staff in re-evaluating the proposed rate plan as directed by the City Council and modifications made to the rate plan.Further issues raised during the Community Forums and evaluated by staff are summarized in the following pages. TABLE 1 - Comparison of 2013 Original Rate Plan to 2014 Modified Rate Plan 2013 Original Plan 2014 Modified Plan Term of the rate plan 4 years 5 years Cost of Capital $442.2 million(1)$429.1 million Intentional Groundwater Recharge$7.1 m $6.4m Raw Water Supply $30 m $98.4m Surface Water Treatment $196.6 m $186.4m Finished Water Distribution $49.6 m $55.4m Rehab/Replacement $126.2m $82.5 m Size of the Southeast SWTP 80 mgd with expansion capacity to 110 mgd 56 mgd with expansion to 80 mgd Average Monthly Rates Year 0 $24.49 $24.49 Year 1 $33.28 $28.30 Year 2 $41.42 $34.12 Year 3 $44.70 $39.62 Year 4 $48.34 $47.26 Year 5 $52.26(1)$52.18 Financing Mechanism Paygo, ratepayer-backed bonds, State- backed low-interest loans Paygo, ratepayer-backed bonds, State-backed low interest loans Tiered Rates No No but recommended for evaluation in next 5-year rate plan (1) The 2013 plan was a 4-year plan with a capital cost of $410 million. To compare the original 4-year rate plan with the new 5-year rate plan, and fifth year of capital costs, as well as construction escalation, were added to the original 4-year plan so the two plans can be compared on a common five-year basis. City of Fresno Printed on 12/16/2022Page 2 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: Much of the debate over the last year has been focused on whether to move forward with the Southeast Surface Water Treatment Plant (“SESWTP”).It is understandable that the SESWTP has been the primary focus of attention because the SESWTP is the single largest cost item in the capital plan;and,therefore,given its amount it is assumed to be the cause of the entire rate increase. However,it is important to note that when reviewing the overall rate,more than 2/3 of the rate is required to recover the costs for day to day operations,maintenance,and existing debt service payments.In other words,even without the capital program,the City’s water rates need to be increased to recover normal and routine annual cost increases for electricity,chemicals, personnel, fuel, operating reserves, and similar. This is described in more detail below. The Administration recommends that the City Council receive the findings and summary of discussions from the Recharge Fresno Community Forums and authorize Department staff to initiate the Proposition 218 hearing process for proposed changes to the schedule of rates,fees,and charges for public service. BACKGROUND On July 31,2014,the City Council rescinded the Water Division’s four-year schedule of rates,fees, and charges,which had been previously approved by City Council in August 2013 and in effect since September 2013.The City Council directed staff to develop a five-year rate plan to replace the previously adopted four-year rate plan,and delay enactment of a new five-year schedule of rates, fees,and charges until at least February 1,2015.Further,the City Council directed staff to initiate a participatory roundtable process to foster and undertake serious discussions relative to all project issues. The following pages include: ·A description of the public’s participation in the development of the recommended rate plan, including the most recent participatory roundtable process (“Recharge Fresno Community Forums”); ·Findings from the additional analysis of options and issues requested by members of the public during the Community Forums and various community meetings; ·Responses to specific questions and statements made by Measure W proponents; ·A description of the Revised Capital Rate Plan; ·A description of the Proposed Water Rates; ·A summary of recently adopted State legislation affecting the City’s water plan; and ·The schedule for the rate adoption process. Description of Public Participation in the Development of the Recommended Rate Plan During Fiscal Year 2010,Mayor Swearengin and the Fresno City Council appointed a Utility Advisory Commission (“UAC”)who were tasked with determining a 5-year plan for Fiscal Years 2012 -2016 while taking into account the critical importance of recommending a sound financial plan that protects City of Fresno Printed on 12/16/2022Page 3 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: while taking into account the critical importance of recommending a sound financial plan that protects both the integrity of the utility system and the rate payers.The UAC was an all-volunteer group of nine (9)citizens who conducted meetings that were open to the public from October 2009 to March 2011 (18 months).During that period of time,the UAC evaluated each utility operated by the City, assessed its financial position and service levels,and reviewed detailed recommendations being made by City staff for a new rate plan.In 2011,the UAC concluded its work and delivered its recommendations to the Administration and to the City Council.Their recommendations included moving forward with the SESWTP,as well as the other capital projects included in the original rate plan.City staff then spent another two years,between 2011 and 2013,continuing to engage the public on the City’s overall water plan through numerous presentations to community groups,as well as to state and federal technical experts. In 2013,after a year of public meetings conducted by the Utility Advisory Commission and another two years of public presentations by staff on the City’s proposed water plan,the Administration recommended adoption of a 4-year rate plan that included funding for an 80 million gallons per day (“mgd”)surface water treatment plant in Southeast Fresno with capacity to expand to 110 mgd; additional recharge basins;a canal for raw water supply to the surface water treatment plant;pipeline to deliver treated water to customers;and a rehabilitation and replacement program for aging infrastructure. In August 2013, the 4-year rate plan was approved by the City Council. The Council’s actions were challenged by a group of residents seeking to qualify an initiative measure (Measure W)to repeal the City’s 2013 utility rates.After litigation,a settlement was reached between the City and the Measure W proponents.The City Council rescinded the 2013 utility rates,fees,and charges and directed staff to initiate a participatory roundtable process to foster and undertake serious discussions relative to all project issues,including regional water issues,the scope of City projects,capital project financing alternatives,charges for new development,and the feasibility of low- or fixed-income subsidies. During the participatory roundtable process, the City publicized, sponsored, televised, and hosted a dedicated website (www.rechargefresno.org <http://www.rechargefresno.org>) for a series of four (4) community forum meetings and one (1) Water Utility Financing Summit. The community forum meetings allowed City leaders, water system ratepayers, taxpayers, taxpayer organizations, initiative proponents, water resource experts, media (radio, television, and print), and other interested parties to review and discuss the City’s water supply system strengths, weaknesses, threats, and opportunities. Detailed minutes of the four (4) community forum meetings and the one (1) Water Utility Financing Summit are attached (Attachment 1). The meetings covered the following subjects. ·Community Forum #1:Fresno’s Water Supply Issues and Needs -Monday,September 29,2014,6:00 p.m.to 8:30 p.m.at Hoover High School.The purpose of the first community forum was to discuss regional water issues and provide information on the City’s overall water system. 145 members of the public attended. Panelists included: o Brock Buche,the City of Fresno Supervising Professional Engineer,Dept of Public Utilities o Jon Traum, U.S. Geological Survey o Gary Serrato, Fresno Irrigation District o Laura Whitehouse, Citizen, Chairperson, Utility Advisory Commission o Martin McIntyre, San Luis Water District City of Fresno Printed on 12/16/2022Page 4 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: o Ernie Taylor, California Department of Water Resources o Dr. John Suen, Faculty, California State University, Fresno ·Community Forum #2:Solutions:Fresno’s Water Future -Monday,October 13,2014, 6:00 p.m.to 8:30 p.m.at Oraze Elementary School.The purpose of the second community forum was to discuss possible solutions to the City’s water challenges.Suggestions made by participants included increasing conservation,adding recharge basins,desalination,limiting growth,adopting an annual water budget agreed to by surrounding jurisdictions,recycling water,and securing state grant funds.139 members of the public attended.Panelists included: o Laura Whitehouse, Chairperson, Utility Advisory Commission o Martin McIntyre, San Luis Water District o David Orth, Kings River Conservation District o Kassy Chauhan, California State Water Resources Control Board o Alan Hofmann, Fresno Metropolitan Flood Control District o Brock Buche, City of Fresno Supervising Professional Engineer, Dept of Public Utilities o Gary Serrato, Fresno Irrigation District o Ron Jacobsma, Friant Water Users Authority ·Community Forum #3:Paying for Fresno’s Water Needs -Monday,October 27,2014, 6:00 p.m.to 8:30 p.m.at Rutherford B.Gaston Middle School.The purpose of the third community forum was to discuss options for paying for the City’s water infrastructure,including cash (pay-as-you-go,or PAYGO,developer fees,grants,loans and bonds.127 members of the public attended. Panelists included: o Gladys Deniz, Member, Utility Advisory Commission o Jeff Roberts, Granville Homes o Doug Vagim, Measure W Proponent o Tommy Esqueda, Director, Dept of Public Utilities, City of Fresno o Martin McIntyre, San Luis Water District o Tim Thiesen, Fresno Taxpayers Association o Kassy Chauhan, California State Water Resources Control Board o Martin McIntyre, San Luis Water District o Gary Serrato, Fresno Irrigation District ·Community Forum #4:Summary and City of Fresno Next Steps -Monday,November 10, 2014,6:00 p.m.to 8:30 p.m.at Fresno City Hall.The purpose of the fourth community forum was to summarize the information covered at the first three sessions and present preliminary recommendations from City staff to the Administration.142 members of the public attended. Panelists included o Kassy Chauhan, California State Water Resources Control Board o Martin McIntyre, San Luis Water District o Gary Serrato, Fresno Irrigation District o Brock Buche, City of Fresno Supervising Professional Engineer, Dept of Public Utilities o Mike Lima, Comptroller, City of Fresno o Tom Pavletic, Municipal Financial Services, Rate Design Consultant ·Water Utility Financing Summit -Monday,October 20,2014,10:30 a.m.to 4:00 p.m.at theCity of Fresno Printed on 12/16/2022Page 5 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: ·Water Utility Financing Summit -Monday,October 20,2014,10:30 a.m.to 4:00 p.m.at the Center for Irrigation Technology on the campus of the California State University at Fresno. The purpose of the Water Utility Financing Summit was to provide a small group of stakeholders,experts,and Measure W proponents with an opportunity to discuss in detail the various funding mechanisms available for the City’s water program. Participants included: o Stephanie Babb, Greater Fresno Apartment Association o Ryan Cogdill, Howard Jarvis Taxpayers Association o Gladys Deniz, Utility Advisory Committee o Jason Duke, Fresno Unified School District o Rachel Eslick, Fresno Chamber of Commerce o David Herb, local advocate o Alfonso Hernandez, La Tapatia o Randy Hergenroeder, Busseto Foods o George Hostetter, Fresno Bee o Myrna Lewis, La Tapatia o Leland Parnagian, Fowler Packing and Economic Development Corp. board o Michael Prandini, Building Industry Association o Tim Thiesen, Fresno Taxpayers Association o Doug Vagim, Measure W Proponent o Steve Wayte, Measure W Proponent o Laura Whitehouse, Utility Advisory Commission o Nick Yovino, Utility Advisory Commission o John Ziese, State Water Resources Control Board Findings from the Additional Analysis of Options and Issues Requested by Members of the Public Over the last three months during the additional “due diligence”phase of the proposed water program,the City has received numerous comments and questions from residents through the Community Forums,meetings with other community groups and interested stakeholders,and through email and telephone.Responses have been provided in detail in the attached “Frequently Asked Questions”document (Attachment 2),but the majority of the questions raised related to four major issues that are extremely important and warrant a careful and detailed response: (1)What is the City’s current water situation and do we really have a need for the proposed infrastructure? It is important to note that more than 2/3 of the water rates,and the associated water bill,is required to recover the costs for normal and customary day-to-day operations,maintenance, mandated operating reserves, and existing debt service payments. The City’s water supply comes from two major sources:groundwater pumped from the aquifer below the City and “surface water”from the San Joaquin and Kings Rivers.There are three significant threats to our water supply that must be addressed:80 years of groundwater over drafting;contamination of City wells resulting in a loss of even more groundwater supply; and a lack of infrastructure to store,treat,and use the surface water needed to address the City of Fresno Printed on 12/16/2022Page 6 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: City’s groundwater challenges. The proposed surface water treatment facility is needed to mitigate decades in which the community has been over drafting the groundwater aquifer.In fact,over the last 80 years,the City’s groundwater dropped over 100 feet.Currently,the City is over drafting the groundwater aquifer by 40,000 acre feet per year (“AFY"), even with recharge and conservation. In addition,the City currently has 80 wells that are impacted by TCP,of which 47 wells are at or above the expected regulatory limit.Those 47 wells represent almost 80 mgd of production capacity that will either require wellhead treatment or abandonment.Further,there are another 26 wells with a production capacity over 30 mgd that are close to being removed from service because the groundwater elevation has declined to a point where drilling any deeper is not cost effective, and a new well will be required in a new location. Combining the City’s annual over drafting and the potential loss of well production from contamination and declining groundwater levels,the City needs approximately 150,000 AFY of water to correct the City’s groundwater problems. Fortunately,ratepayers have purchased rights to 180,000 acre feet of surface water that is stored behind Pine Flat and Friant dams.The City’s surface water can be used to meet annual water demand,which will allow groundwater to be recharged over time.However,the lack of adequate infrastructure results in approximately 110,000 AFY of water never being used to benefit our ratepayers during a normal year.The construction of a new surface water treatment facility will not only reduce the reliance on groundwater,it will allow the ratepayers to take advantage of the surface water supplies which are already purchased. It is unfortunate that there remains a belief in the community that the practice of over drafting groundwater is somehow acceptable,and that the public health risks associated with TCP and other contaminants do not require action.To emphasize the need to address groundwater issues in the State,on September 14,2014,the Governor of California signed into law three bills that are collectively referred to as the Sustainable Groundwater Management Act (the Act).The Act recognizes that excessive groundwater extraction can cause overdraft,failed wells,deteriorated water quality,environmental damage,and irreversible land subsidence -all conditions that exist in the City of Fresno and all of which require corrective action immediately. (2)Is the proposed water infrastructure needed for our current population or is it beingCity of Fresno Printed on 12/16/2022Page 7 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: (2)Is the proposed water infrastructure needed for our current population or is it being built to prompt and subsidize new development in Southeast Fresno? This question seems to lie at the heart of most of the concerns and questions expressed by proponents of Measure W and participants at the Recharge Fresno community forums. Because the new surface water treatment plant is physically located in southeast Fresno near the City’s Southeast Growth Area (“SEGA”),some have taken that to mean the surface water treatment plant is being proposed to support the build out of SEGA.However,City staff selected the site for the proposed SESWTP primarily because of its close proximity to the Kings River.Additionally,the site selected for withdrawing water from the Kings River is located at a point where the Kings River and Friant-Kern Canal intersect,making it the most logical and cost effective location for the pipeline to serve the new surface water treatment plant. As explained above,the surface water treatment plant is needed to recharge the City’s groundwater and provide for a sustainable water supply for existing residents.As the population grows,new development is triggered.That new development is required to pay for the capital costs associated with extending water/sewer infrastructure and hooking up to the water system.State law prohibits one user group from subsidizing another user group’s rates. Therefore,it is illegal for existing ratepayers to subsidize new development.The Administration acknowledges that new development must pay its own way,and there is an existing development fee schedule in place for new connections to the City’s public water system.Accordingly,the Administration is directing the Department of Public Utilities to initiate a development fee study to ensure that new development will continue to pay its fair share of the costs to develop,improve,operate,and maintain the City’s public water system.Upon completion of the development fee study,the Administration will present recommendations to the City Council for consideration. (3)What is the best, most cost effective way to recharge the City’s groundwater? Once it is established that the City must,in fact,recharge its groundwater because of decades of over drafting,well contamination,and a new state law that is now regulating groundwater usage,the next logical question is “What is the best,most cost effective way to recharge the City’s groundwater?”During the additional due diligence phase,staff was asked by the public to re-examine other mechanisms available to recharge the aquifer besides surface water treatment facilities, including: ·Conservation -This is an important part of balancing Fresno’s water supply,and the City has already significantly reduced water demand through conservation.From 2008 to 2013,the citizens of Fresno reduced water consumption from 320 gallons per person per day to 240 gallons per person per day.It was originally planned that the City would achieve 240 gallons per person per day in 2020.However,conservation alone cannot solve Fresno’s water challenges and would not fulfill the requirements in the state’s new groundwater legislation. ·Additional Recharge Basins -To achieve the same amount of recharge made possible with the Surface Water Treatment Plant,the City would need to acquire through direct purchase or eminent domain approximately 2,000 acres of land with suitable soils,and then construct additional conveyance facilities to deliver water to the new recharge basins. City of Fresno Printed on 12/16/2022Page 8 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: then construct additional conveyance facilities to deliver water to the new recharge basins. The land,conveyance facilities,construction,and operating costs are estimated at $300 million.The Surface Water Treatment Plant in the modified rate plan is $186 million, making it a more cost effective option to replenish groundwater than relying on additional recharge basins. ·Desalination,Rainwater Harvesting,Cloud Seeding -These options are not cost- effective or, in some cases, infeasible at this time. ·Grey Water -Grey water systems are gaining popularity as a potential water supply source around the country.However,there remain concerns with grey water systems in the areas of protecting public health and creating public nuisances such as vector attraction.Accordingly,close coordination with state and county public health agencies will be required to implement these programs successfully.While grey water systems can reduce water demands,given that these programs are generally offered on a voluntary basis,the degree of water reduction is insufficient to meet the City’s immediate needs to comply with new state laws. (4)What is the most cost effective and equitable way to pay for the City’s water needs? The City has historically paid for water infrastructure through a combination of “pay as you go”(PAYGO),state-backed low-interest loans,and bonds backed by monthly user fees (or rates)and is again proposing the same approach with the 2014 water rate plan.There seems to be broad agreement on using PAYGO and state-backed low-interest loans as they are available to pay for and finance needed infrastructure improvements.However,there has been some debate on using bonds backed by user fees.Measure W proponents have repeatedly suggested that a parcel-based tax system would be a better way to finance water infrastructure improvements.City staff convened a day-long Water Utility Financing Summit (meeting minutes attached as Attachment 1)to discuss this approach versus a user-fee system for financing and concluded,first of all,that regardless of whether the financing mechanism was parcel-based or user-based,the price to build the surface water treatment plant would remain the same: $186.4 million. Secondly,staff concluded that the user-based mechanism is the most efficient and effective means to finance the infrastructure because it reduces administrative costs (parcel-based collection systems require the County of Fresno collect and disperse funds to the City,which adds a layer of government overhead to the process and increases costs);is less vulnerable to legal challenges (the Howard Jarvis Taxpayers Association commented at the Financing Summit that various forms of parcel-based taxes for water infrastructure would be litigation targets without creating a nexus between the amount of the charge and the level of benefit provided);and encourages water conservation (user-based mechanisms only require users to pay for what they use,thereby incentivizing conservation).As further validation that a parcel- based tax system is an inferior collection mechanism,City staff and consultants surveyed other cities throughout the state to try to find any that choose a parcel-based tax system for water infrastructure and found none. Some have expressed concern about issuing debt to pay for the proposed capital plan and instead pay cash for all proposed infrastructure.However,a cash only financing plan would result in the first year rate increase changing from 15.6 percent to 100 percent.In the fourth City of Fresno Printed on 12/16/2022Page 9 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: result in the first year rate increase changing from 15.6 percent to 100 percent.In the fourth year of a rate plan that relied exclusively on cash financing,rates in the City of Fresno would increase by 245 percent.The City’s current rate plan is based on a balanced financing strategy that uses a combination of cash,revenue debt,and low-interest state loans to keep annual rate increases at or below 20 percent each year to aid with water affordability. Measure W proponents have suggested the City’s Federal Community Development Block Grant (CDBG)funds could be a source of financing water infrastructure.While the City does currently receive CDBG funds to finance important programs,projects,and services in economically disadvantaged areas of the community,there is a greater demand for programs, projects,and services than there are CDBG funds.The City’s annual allocation of CDBG funding averages about $6 million per year which is totally insufficient to fund the proposed capital plan.If CDBG funds were to be reallocated to the water project,the City would be forced to eliminate the hot meals program for low-income seniors and parks programs for children in low-income neighborhoods. Recognizing that there are residents in the community that are on low-and fixed-incomes, staff reviewed state and national standards to assess the affordability of water in the City of Fresno.At both the state and national level,one standard that is commonly used is 1.5 to 2 percent of median household income in the community.So,with the median household income in the City of Fresno ranging from $40,000 per year to $43,000 per year over the last several years,an affordable water bill would range from $50 per month to $72 per month. During the public participation process,staff reviewed and evaluated the legal and technical feasibility of offering subsidies to low-and fixed-income residents in the community to assist with water affordability.However,in accordance with the California Constitution,it will not be possible to use ratepayer funds to provide subsidies to low-and fixed-income residents,and such subsidies would require an alternate source of funds such as the General Fund.This assessment was confirmed in conversations with the Howard Jarvis Taxpayers Association. The Administration would be pleased to work with the City Council and public to develop a low income subsidy program with non-ratepayer funds during the next budget cycle. Lastly,Measure W proponents have suggested the City could offer the PACE program to finance water conservation measures on private property.The PACE Program can be used to fund water conservation projects on private property in the City of Fresno.Under the PACE Program,individual property owners can contact the designated PACE agency to install water conservation measures,and the costs of the water conservation measures can be repaid to the agency under a long-term loan that is secured with a lien on the private property. However,the PACE program cannot be used to finance large-scale,water utility upgrades.It is intended to help individual property owners improve water efficiency at their homes or businesses. Responses to Specific Statements made by Measure W Proponents In addition to the four,broader issues addressed above,there are several other statements that have been made consistently by Measure W proponents in media interviews and during community City of Fresno Printed on 12/16/2022Page 10 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: forums.Because there is a significant amount of misinformation and misunderstanding being circulated about the City’s water plan,the Administration believes it is important to address each of these statements and provide accurate information for the City Council and the public. ·Statement:The U.S.Geological Survey has indicated the City does not have a problem with groundwater over drafting. This statement is false.In fact,at the first Community Forum on September 29,Jon Traum of the U.S.Geological Survey commented that the Tulare Basin,the basin in which the City of Fresno sits,is declining by 1.5 million AFY.Mr.Traum indicated that this is the equivalent of losing one and a half Pine Flat Reservoirs every year.More recently,satellite imagery collected and processed by NASA,clearly illustrates the severity and geographic extent of groundwater losses in the Central Valley of California.The NASA satellite imagery was presented for public view at all of the Community Forums. ·Statement: An 80 MGD surface water treatment plant is too big and unnecessary. This statement is inaccurate.Combining the City’s annual over drafting and the potential loss of well production from contamination and declining groundwater levels,the City needs approximately 150,000 AFY of water to correct the City’s groundwater problems.In fact,City staff believe that anything less than an 80 mgd surface water treatment plant will be rejected by the State as being insufficient to address the City’s ground water challenges,particularly with the passage of the Sustainable Groundwater Management Act. ·Statement:The City has a small surface water treatment plant that isn’t operational. Therefore, the Southeast Surface Water Treatment Plant isn’t needed. This statement is inaccurate.The small facility,completed in November 2013,can treat approximately 4 million gallons of water a day.This facility also includes a 3 million gallon storage tank and booster pump station that has power and is fully functional.The water treatment facility is fully functional but is not currently operating while the Fresno Irrigation District (FID)conducts annual canal maintenance -with canals providing water to the facility. When FID resumes water deliveries,the plant will be placed into service to deliver water to the community. ·Statement:The City could expand the Northeast Surface Water Treatment Plant for rate increases of 3%to 5%per year and do away with the need for the Southeast Surface Water Treatment Plant. This statement is both false and inaccurate.While it is accurate that the Northeast Surface Water Treatment Plant (NESWTP)could be expanded from 30 mgd to 60 mgd,it is not accurate that the cost would result in rate increases of just 3%to 5%per year.Additional surface water capacity will cost the same regardless of where it is built:between $2.30 and $2.60 per gallon. Building the additional capacity in Southeast Fresno is the more prudent City of Fresno Printed on 12/16/2022Page 11 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: path because (1)it is closer to the source of surface water most likely to be treated at the facility and (2)it builds needed redundancy into the City’s overall water system to have both a Northeast and a SESWTP. Suggesting that expanding from 30 mgd to 60 mgd at the NESWTP will resolve the need to add the SESWTP is inaccurate.As indicated above,the City currently requires 150,000 AFY to address its groundwater problem given the over drafting and well contamination issues. City staff believes the State will reject plans by the City to build anything less than an 80 mgd plant given the size of the problem that needs to be addressed. ·Statement:The City should not build a surface water treatment plant because during drought years, there would be no water for the City to store, treat and use . This statement is inaccurate.We have and pay for access to surface water supplies.The City has surface water entitlements totaling 180,000 acre feet per year during a normal year.The amount of surface water available annually to Fresno fluctuates,but even in an extremely dry year like this year,the City of Fresno was allocated 65,000 AFY.For perspective,it is estimated that the City’s water demand in 2014 will be approximately 130,000 acre-feet,and so our 2014 allocation would have met half of our water demand -which is groundwater we could have preserved. ·Statement:The City has modified its original plan to use an open canal to get raw water to the SE Surface Water Treatment Plant and is now proposing to build a pipeline to deliver the raw water.The pipeline is not environmentally cleared and cannot be approved in time to supply the Surface Water Treatment Plant with raw water. This statement is inaccurate.The original raw water conveyance plan for the SESWTP was to use FID’s canal.However,in discussions with environmental and public health regulatory agencies,it was determined that a pipeline was the preferred raw water supply option for the SESWTF.The new pipeline is planned to be constructed in existing public right-of-way,which will require significantly less environmental review than the FID canal option because it has significantly less environmental impact.There would have been environmental review and permitting delays with the canal option,not with the pipeline option (Attachment 3,Letter from State of CA dated 11/7/2014). ·Statement: The City cannot be trusted to bring $400 m of capital projects online . While the City of Fresno always appreciates healthy skepticism and constructive challenges, we do not believe this is a credible argument for delaying or eliminating the City’s planned water infrastructure.The City has successfully delivered nearly $1 billion in capital projects over the past 10-12 years alone.This includes the $100 million expansion of the wastewater treatment facility,$40 million for the expansion of the Northeast Surface Water Treatment facility and $70 million for installation of water meters.In addition,the City has successfully delivered over $175 million in Airport projects,a $15 million Police Regional Training facility, nearly $20 million in new fire stations and improvements to existing fire stations,the $15 City of Fresno Printed on 12/16/2022Page 12 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: nearly $20 million in new fire stations and improvements to existing fire stations,the $15 million Shaw/Marks grade separation project,the $40 million AAA baseball stadium,nearly $20 million in parks projects and over $175 million in Public Works projects including traffic signals, road construction and curb and gutter installation. ·Statement:The City is “ramming this water plan down our throats”and rushing the process. While this is a subjective statement,the City disagrees with the representation that this water plan is being rushed in any way.In fact,the City of Fresno staff has been regularly updating the City Council and the public on the status of the aquifer and has steadily worked to develop a long term plan to address the overdraft problem.Known originally as the “Urban Water Management Plan,”City staff first began to address this problem in 1986.The long term plan was then updated and approved by the City Council in 1993,2008,and again in 2010. However,while the plan was regularly updated and approved by previous City Councils,the water rates were not adjusted as needed to actually implement the plan.There were understandable concerns about raising utility rates and,as a result,rates were not raised as they should have been in small and steady increments to build the needed infrastructure and avoid “rate shock.”Unfortunately,that delayed the construction of the needed infrastructure and added to the ultimate cost. Over the last four years,the City has conducted extensive community outreach to explain the groundwater challenge we face and invite public input on the solutions needed to address that challenge,including a year of public meetings conducted by volunteers on the Utility Advisory Commission,followed by two more years of presentations by City staff to the public,and most recently,a six month additional “due diligence”phase and Recharge Fresno community forums that delved deeply into all aspects of the City’s water plan. The steady feedback from the public has been that,while no one likes to pay more money for water,it is time to move forward with the water plan and avoid making the problem even worse and costlier by delaying action yet again. Revised Capital Investment Plan In response to direction from the City Council on July 31,2014,the Department of Public Utilities has subsequently developed a revised capital investment plan to provide a safe,reliable,and sustainable supply of water for the community;enhance water conservation;continue intentional groundwater recharge;repair and replace aging pipelines and wells;comply with the requirements of the recently enacted Sustainable Groundwater Management Act,which is intended to eliminate over drafting of the City’s groundwater resources;and comply with soon-to-be-adopted groundwater quality regulations for 1,2,3-trichloropropane (1,2,3-TCP or TCP).Table 2 summarizes the revised capital investment plan. City of Fresno Printed on 12/16/2022Page 13 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: TABLE 2 - Comparison of 2013 Original Rate Plan to 2014 Modified Rate Plan 2013 Original Plan 2014 Modified Plan Term of the rate plan 4 years 5 years Cost of Capital $442.2 million (1)$429.1 m Intentional Groundwater Recharge$7.1 m $6.4m Raw Water Supply $30 m $98.4m Surface Water Treatment $196.6 m $186.4m Finished Water Distribution $49.6 m $55.4m Rehab/Replacement $126.2m $82.5 m Size of the Southeast SWTP 80 mgd with expansion capacity to 110 mgd 56 mgd with expansion to 80 mgd Average Monthly Rates Year 0 $24.49 $24.49 Year 1 $33.28 $28.30 Year 2 $41.42 $34.12 Year 3 $44.70 $39.62 Year 4 $48.34 $47.26 Year 5 $52.26(1)$52.18 Financing Mechanism Paygo, ratepayer-backed bonds, State- backed low-interest loans Paygo, ratepayer-backed bonds, State-backed low interest loans Tiered Rates No No but recommended for evaluation in next 5-year rate plan (1) The 2013 plan was a 4-year plan with a capital cost of $410 million. To compare the original 4-year rate plan with the new 5-year rate plan, and fifth year of capital costs, as well as construction escalation, were added to the original 4-year plan so the two plans can be compared on a common five-year basis. The revised capital investment plan totals $429 million over a five-year period.The revised capital investment plan includes the following categories of projects: 1.Intentional Groundwater Recharge Facilities = $6.4 million ·The City plans to coordinate our recharge endeavors with the Fresno Irrigation District and the Fresno Metropolitan Flood Control District to increase the number and effectiveness of recharge facilities in the community.These efforts will require the acquisition of property to construct recharge basins that will reduce the continuing decline of the groundwater aquifer,which is mandated by the recently enacted Sustainable Groundwater Management Act. City of Fresno Printed on 12/16/2022Page 14 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: 2.Raw Water Supply Facilities = $98.4 million ·This project calls for the installation of 18 miles pipeline that will be used to supply surface water allocations from the Kings River and Friant/Kern Canal to the existing 30 mgd NESWTP and the new 80 mgd SESWTP.The original rate plan called for constructing an open canal for the SESWTP,but concerns related to potential contamination and environmental impacts resulted in this recommended change. 3.Surface Water Treatment Facilities = $186.4 million ·The construction of an 80 mgd surface water treatment plant will allow the City to effectively use water allocations already purchased by the ratepayers.More importantly,this facility will allow the City to mitigate the impacts associated with decades of overdrafting of groundwater as well as compliance with the recently enacted Sustainable Groundwater Management Act. 4.Finished Water Distribution Facilities = $55.4 million ·These facilities will connect the treated water produced at the Surface Water Treatment Facility to the existing water delivery system. 5.Pipeline and Well Rehabilitation and Replacement = $82.5 million ·Historically,the Department has not fully funded a capital replacement program.The funding is needed to begin the process of replacing miles existing pipelines,wells,etc., some of which are more than 80 years old. Rate Increases Required Without Capital Program Much of the debate over the last year has been focused on whether to move forward with the SESWTP.It is understandable that the SESWTP has been the primary focus of attention because the SESWTP is the single largest cost item in the capital plan.Given its size,it is assumed to be the cause of the entire rate increase.However,it is important to note that when reviewing the overall rate,more than 2/3 of the rate is required to recover the costs for day to day operations, maintenance,and existing debt service payments.In other words,even without the capital program,the City’s water rates would need to be increased to recover normal and routine annual cost increases for electricity,chemicals,personnel,fuel,operating reserves,and similar.See table and graph below for distribution of costs for the rate plan. FY 2015 FY 2016 FY 2017 FY 2018 FY 2019 Rehabilitation/Replacement $ 0.88 $ 1.82 $ 3.89 $ 5.62 $ 8.45 Groundwater Recharge $ 0.02 $ 0.18 $ 0.56 $ 0.66 $ 0.18 Surface Water Treatment Water Supply and Distribution $ 0.18 $ 0.56 $ 2.79 $ 7.40 $ 9.89 O&M and Existing Debt $ 27.22 $ 31.56 $ 32.38 $ 33.58 $ 33.66 Total $ 28.30 $ 34.12 $ 39.62 $ 47.26 $ 52.18 City of Fresno Printed on 12/16/2022Page 15 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: Proposed Water Rates The Department of Public Utilities retained a rate consultant (Municipal Financial Services)to design a five-year schedule of rates,fees,and charges to recover the Water Division’s five-year forecast of capital, operations and maintenance expenditures. In developing a five-year schedule of rates,fees,and charges,the City must comply with the California Constitution by establishing rates,fees,and charges that recover the actual costs associated with the level,quality,and quantity of service delivered to individual users of the system. Accordingly,the City’s proposed five-year schedule of rates,fees,and charges is based on common and well-established cost-of-service principles that promote equity among system users,whereby individual users of the system pay rates,fees and charges that are directly proportional to the level, quality, and quantity of service received by individual users. During the public participation process,it was suggested that the City consider using parcel-based taxes,in addition to consumption-based user charges,to finance a portion of the Water Division’s planned capital,operations,and maintenance expenditures.The Department of Public Utilities evaluated the potential use of a parcel-based tax.Based on the evaluation,the parcel-based tax financing approach was determined to be (1)less cost-effective for revenue collection,(2)legally vulnerable pursuant to Proposition 218 as such an approach is less equitable in distributing the costs of public water service delivery,and (3)less effective for promoting water conservation.Overall, given that a parcel-based tax cannot be directly related to the level,quality,and quantity of service received by individual users of the system,the Department of Public Utilities recommends using consumption-based user charges exclusively to recover the Water Division’s five-year forecast of capital,operations and maintenance expenditures.Consumption-based user charges are consistent with cost-of-service principles required by Article XIIID of the California Constitution. At the direction of the Department of Public Utilities,Municipal Financial Services (MFS)has designed a five-year schedule of rates,fees,and charges consistent with Article XIIID of the California Constitution,whereby it can be demonstrated that the amount of the fees charged for water service do not exceed the actual and proportional cost of the service attributable to the delivery of water. Based on this direction, MFS evaluated the following three rate design options: City of Fresno Printed on 12/16/2022Page 16 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: a)Uniform quantity charge for all customers classes (residential, non-residential, and irrigation); b)Uniform quantity charge by customer class; and c)Two-tier inclining block rates for single-family residential (SFR)customers,with a uniform quantity charge for non-residential and irrigation customer classes. Based on the quality and quantity of water meter data available to design a new,five-year schedule of water rates,fees,and charges that is consistent with Article XIIID of the California Constitution,the Department of Public Utilities recommends proceeding with a uniform rate for all customer classes. While tiered rates were identified as a preferred option by some community members during the public participation process and are used by other communities throughout the country,the Department of Public Utilities is concerned that the limited amount of water meter data available will make it difficult to develop tiered rates that can withstand legal challenge at this time.Nevertheless, the Department will evaluate the technical,financial,and legal feasibility of implementing a tiered rate plan at the end of the proposed rate plan (FY 2019). The proposed schedule of water rates,fees,and charges developed by the Department of Public Utilities for Proposition 218 process are presented in Attachment 4 to this Council Report. State Legislation Affecting the City’s Water System On September 14,2014,the Governor of California signed into law three bills that are collectively referred to as the Sustainable Groundwater Management Act (the Act).The Act recognizes that excessive groundwater extraction can cause overdraft,failed wells,deteriorated water quality, environmental damage,and irreversible land subsidence -all of which require corrective action.The Act also recognizes that sustainable groundwater management depends upon creating more opportunities for robust conjunctive management of surface water and groundwater resources.The Act defines “sustainable groundwater management”as the management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results,and “sustainable yield”as the maximum quantity of water that can be withdrawn annually from a groundwater supply without causing an undesirable result.For the purposes of the Act,“undesirable result”means (a)chronic lowering of groundwater levels,(b)significant and unreasonable reduction of groundwater storage,and (c)significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies. In accordance with the Act,the City of Fresno will be required to comply with the following schedule of events: a)By June 1,2016,the State shall adopt regulations for evaluating groundwater sustainability plans and the implementation of groundwater sustainability plans; b)By June 1,2016,the State shall adopt regulations for evaluating alternatives plan submitted pursuant to the Act; c)By January 1,2017,the City -if it so desires -shall submit an alternative plan pursuant to the Act; d)By June 30,2017,a groundwater sustainability agency must be designated for the City of City of Fresno Printed on 12/16/2022Page 17 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: d)By June 30,2017,a groundwater sustainability agency must be designated for the City of Fresno service area; and e)By January 31,2020,all basins designated as high-or medium-priority basins by the State shall be managed under a groundwater sustainability plan. The City of Fresno is located within Kings Subbasin of the Tulare Lake Hydrologic Region.This aquifer has been identified by the State as a high-priority basin for correcting significant groundwater overdraft conditions.The construction of new raw water supply facilities,surface water treatment facilities,and finished water transmission facilities are needed to address the regulatory requirements that will be mandated by the Sustainable Groundwater Management Act to correct the existing groundwater overdraft conditions. 1,2,3-TCP In 1999,TCP was added to the list of chemicals known to the State of California to cause cancer. The State is currently developing a maximum contaminant level (“MCL”)for TCP,which is expected to be released for public comment in late 2014 or early 2015. Based on water quality sampling conducted from 2011 through 2014,the presence of TCP has been identified in 80 of the City’s groundwater wells at and above the public health goal of 0.0007 parts per billion (“ppb”).The total production of these 80 wells is approximately 138 million gallons per day (“MGD”).If the MCL is set at 0.005 ppb,the notification level,the City could lose use of 47 wells with a production capacity of approximately 76 MGD -about 30 percent of the City’s total groundwater production capacity.Wellhead treatment for TCP will require the installation of granulated activated carbon (“GAC”)vessels at each well site to reduce the concentration of TCP in the drinking water. The current estimated cost to install new GAC vessels at well sites contaminated with TCP is $170 million for the initial installation,and the City will incur additional long-term costs for GAC removal, replacement and disposal as the GAC becomes spent from TCP removal and new GAC must be installed.The estimated life-cycle cost to provide GAC treatment for TCP removal is in excess of $300 million. To address a portion of the financial burden associated with installing wellhead treatment for TCP,the City will pursue legal action as it has done in the past with other contamination issues (i.e.DBCP). However,until the necessary legal action can be brought to closure,the City will have to implement an interim water supply source to account for the loss of 47 wells that produce 76 MGD.The construction of new raw water supply facilities,surface water treatment facilities,and finished water transmission facilities are needed to address regulatory requirements that will be mandated by the soon-to-be-adopted water quality standard for 1,2,3-TCP. Schedule The proposed schedule is as follows: ·Approval to begin Proposition 218 process and 45-day Public Notice: November 24, 2014; ·Staff mails Proposition 218 Public Notice: December 22, 2014 (Attachment 5); City of Fresno Printed on 12/16/2022Page 18 of 19 powered by Legistar™ File #:ID#14-561 Agenda Date:11/20/2014 Agenda #: ·City Council conducts mandatory Proposition 218 protest hearing: February 5, 2015; ·City Council adopts new five-year schedule of water rates,fees,and charges:February 5, 2015; ·Utilities Billing and Collection bills new rates: March 7, 2015 The Department of Public Utilities recommends that the City Council authorize Department staff to initiate the Proposition 218 hearing process for proposed changes to the schedule of rates,fees,and charges for public water service. ENVIRONMENTAL FINDINGS This is not a “project”for the purposes of CEQA pursuant to CEQA Guidelines §15378(b)(5),as it is an administrative action that will not result in direct or indirect physical changes to the environment. LOCAL PREFERENCE Local preference was not considered because the Resolution does not include a bid or award of a construction or services contract. FISCAL IMPACT As this is an enterprise operation,there is no impact to the General Fund.Other fiscal impacts are addressed within the rate tables above. Attachments: 1.Meeting Minutes, Community Forums and Utility Rate Summit 2.Responses to Frequently Asked Questions 3.Letter from State Water Resources Control Board, November 7, 2014 4.Proposed Changes to Schedule of Rates, Fees and Charges for Public Water Supply 5.Proposed Public Notice for Changes to Schedule of Rates, Fees, and Charges for Public Water Service City of Fresno Printed on 12/16/2022Page 19 of 19 powered by Legistar™ City of Fresno Recharge Fresno Water Reliability Community Forum Monday, Sept. 29, 2014 Summary The Recharge Fresno Water Reliability Community Forum on Monday, Sept. 29, was the first in a series of four to be held in fall 2014. An open house was held from 6 to 7 p.m. during which members of the public could visit information stations and speak one-on-one with subject matter experts. At 7 p.m., the neutral facilitator opened the meeting with an overview of the agenda and ground rules for the discussion portion of the forum. A video (available here: http://www.youtube.com/watch?v=Hxmg2QKirLs) was shown about how important water is to the City of Fresno, and its residents and business owners. After the short video, Brock Buche, City of Fresno Supervising Professional Engineer, gave a presentation about Fresno’s water resources. He went over the main sources of water, including groundwater and surface water, and described that the City of Fresno relies on groundwater for nearly 90 percent of its water supply. The City had an abundant and resourceful aquifer at one time, but new wells were drilled to meet City demands. Over time, the City has not been able to offset the high levels of groundwater pumping. Groundwater levels are dropping drastically, and pumping is not sustainable. Mr. Buche explained that the City has dealt with challenging water situations in the past, including groundwater contamination in the 1980s. One attendee asked what the source was of TCP in the groundwater, and Mr. Buche explained that it came from application to agriculture land in vineyards and orchards. He explained that natural and intentional groundwater recharge does not keep up with the amount of water that is pumped. The water demand is 153,000 acre-feet per year, and groundwater pumping is 134,000 acre-feet per year. Taking treated surface water, intentional recharge, and natural and inflow recharge into account, the deficit pumping is 40,000 acre-feet per year. Mr. Buche explained that the city has relied on groundwater for more than a century, and as the groundwater supply decreases, deeper pumping is required. Deeper pumping means increased energy costs, diminishing quality and the possibility of exhausting the available water within the existing wells. Currently, the groundwater is at 130 feet below the surface. Mr. Buche explained that the City pays for surface water supplies from the Sierra Nevada Mountains that currently can’t be used because there is not infrastructure in place that can treat and transport the water to residences and businesses. Allocations in a normal year would be 110,000 acre-feet of surface water. He explained that a solution to Fresno’s water situation should have long-term reliability, should be sustainable and resilient, should support economic vitality, and should be safe and affordable. The neutral facilitator then led a discussion with subject matter expert panelists about Fresno’s water resources. Below are the questions asked of the panelists, as well as the answers given. Question –What is unique in Fresno from your perspective? Is this the same situation facing other parts of the Central Valley and California? Response from Jon Traum, U.S. Geological Survey – This is a typical situation throughout the Tulare Basin, and many places are experiencing overdraft. Many places in the Tulare Basin also have agriculture Water Reliability Community Forum Summary Sept. 29, 2014 1 around them, and agriculture is also pumping groundwater. It’s a combination of the City and the agriculture in the area. As a whole, the Basin is declining by 1.5 million feet a year, which is basically the size of Pine Flat Reservoir. Response from Gary Serrato, Fresno Irrigation District – It is unique that the City of Fresno and Fresno Irrigation District work together to sustain a groundwater supply. The City and Fresno Irrigation District both have contracts with the Bureau of Reclamation, and we also have a great supply from the Kings River. However, we aren’t seeing that supply right now because of the drought. We need to do a better job of capturing the water supply when it’s available to us. The Fresno Irrigation District is able to capture the water and deliver it to growers, and the water stays in the area. However, it is important that we recharge the groundwater system and treat surface water. Comment from Laura Whitehouse, City of Fresno Utility Advisory Committee – The Utility Advisory Committee was used to learn about the water situation and figure out what to do. For years, we haven’t done anything, and now, we really need to make changes. We need to change the way we plant our yards, we need to think about our friends in agriculture and about how many showers we take. It’s going to cost more money if you use more water. Part of our City has water that isn’t that clean, and the water down below is going down. We need to do something. Comment from Martin McIntyre, San Luis Water District – Up and down the valley, groundwater overdraft is a serious problem. A distinct advantage that the City of Fresno has is that their problem is curable. They have available surface water resources to cure their problem. Recharging the groundwater is critically important. As the groundwater supply decreases, and the “bowl” deepens, contaminants move, and it’s important to apply the resources to solve this issue. The good news, though, is that we have the availability of surface water. Comment from Ernie Taylor, California Department of Water Resources – We do have an availability of surface water supplies. The Department of Water Resources has encouraged local areas to be more flexible with water supply and be more sustainable and reliable. Fresno has an opportunity to expand supplies to surface water instead of using groundwater for more than 80 percent of its supply. Any time we can change that, including pumping less, we should. Groundwater should be our back-up supply and surface water should be the main supply. Comment from Dr. John Suen, Fresno State University – There is no possible answer to how much groundwater there is. Imagine a bathtub with sand and water. Then someone sticks a straw in and sucks it up. There is a limited amount of clean water on top and dirty water on the bottom. Digging deeper wells causes worse water quality that needs to be treated, which costs more money. Groundwater is not unlimited. After the panelists had an opportunity to respond about Fresno’s water resources, the facilitator led a question and answer session between members of the public and the panelists. Comment – I would like to present a third option to using surface water and groundwater. Desalinization has been successful in other places, including Florida and Santa Barbara. These plants can treat 150 billion gallons per day. Question – Why hasn’t a pipe been constructed from Millerton Lake to Fresno already? Water Reliability Community Forum Summary Sept. 29, 2014 2 Response – There is a canal that brings 70,000 acre-feet of water, but Fresno isn’t making effective use of that source. We’re not treating that water because we don’t have the necessary infrastructure in place, and part of the plan is to build that infrastructure. That is part of the plan; to build infrastructure. Question – Don’t we have a significant number of ponding basins close to the canals? Response – There are a significant number of basins. Some are permeable and some percolate three or four feet per year. They are inadequate and don’t have enough permeability to recharge the water. Question – We have done 30 to 60 feet wells for percolation. Why can’t we drill a dozen wells to increase percolation? Response – Channels are prone to plugging. Injecting the water generally doesn’t work unless water has been treated prior to injection. Question – I heard there was a treatment plant at Dakota and Armstrong that was built five years ago. Why isn’t that being utilized? Response – That is the T-3 facility. It originally had a three-million gallon tank, and it was modified to include a surface water treatment portion. It is currently capable of treating surface water, but it hasn’t been brought online yet. It was completed in November 2013. Question –How many acre-feet of water are used in an urban square-mile compared to an agricultural square-mile? Response – An urban square-mile takes about three feet of water, and an agricultural square-mile also takes about three feet. It is roughly equal use of water per foot. Question – We provide residential water solutions. Because there is a 15-18 month delay for well drilling, I suggest rainwater collection. What is the percentage of runoff that we are not able to collect because our ponding basins can only collect one inch of rain? Response – We do recapture rainwater. The City has ponding basins throughout the city as part of the Fresno Metropolitan Flood Control District. When they are not being utilized to collect storm water, they are used for groundwater recharge. The Fresno Irrigation District takes it to facilities to be treated and utilized. Question – The Chamber of Commerce and a group called Prosperity of Fresno are pushing market forces and pushing urban growth. This is going to increase water demand and is not sustainable. There is a limit of growth on a finite resource. If we are going to continue to have our major economic force be agriculture, we’ve got to deal with both. Response – More people does mean more water. In the United States, water usage is 150 gallons per person per day. The Fresno area uses roughly 220 gallons per person per day. In Marin County, it’s 88 gallons per person per day. Where I grew up in Hong Kong, I used two gallons per day. Response – The Utility Committee discussed conservation. The thought has been that citizens who use less water pay less and those who use more water pay more. That is not a feasible option anymore. We should do all we can to conserve water. Question – Is there any way to measure horizontal movement of water that is being percolated? Response – We can use monitoring wells every few miles to measure how fast the water is moving horizontally. We also use computer models. Water Reliability Community Forum Summary Sept. 29, 2014 3 Question – Is there going to be a concentrated effort for agriculture to use less pesticide and go more organic? Response – We are dealing with legacy contamination that was applied years ago. Response – The cost of pesticides drives farms to be more efficient. Question – As part of the water bond, as far as the additional storage, I know we haven’t fully utilized our full allocation. Is there going to be an opportunity for us to bank that water as a city? Response – The Bureau of Reclamation is one of the partners with the State of California looking at storage, and there is actually going to be a public meeting about Upper San Joaquin River Storage Investigation in Fresno on Oct. 16 at Piccadilly Inn. Storage would be authorized by Congress, and we are looking at providing water to the Friant Water Authority and possibly as far down as Los Angeles, but it will all be determined once the legislation is written. Comment – The Helms Project was the first major release of water that hit Friant Dam and filled it halfway with sand. They couldn’t shut off the pumps because electricity wouldn’t be generated and people would stop making money. Seals got eaten away. The dry creek reservoir was built without any government oversight and they built the dam higher for no reason. Equipment was brought down from Alaska for the project. The San Joaquin River has been going full-blast. Our farmers are getting nothing from it. Pacific Gas & Electric has a plan to buy all the farms so they can build solar farms. Comment –In the 1970s, it was a worse drought, however, Mother Nature takes care of us. In the 1980s, we got enough water to supply the world, but we didn’t preserve it. Now we need to take that water and preserve it for our needs. Comment – People of Fresno are getting the picture and want to conserve water. I think we need our trees. I hope something will be built into this plan to save the trees. The City of Fresno should consider helping residents with systems that can save and recycle water they use. Comment – The City is planning to prohibit watering and street trees planted between the sidewalk and street. The City of Fresno is responsible for saving those trees. They need to be preserved to combat high temperatures in the summer. The City needs a plan to save the trees. Question – Is it more costly to pump water from wells or treat surface water? Response – It depends. As groundwater levels have dropped, depths have reached so low that it is cheaper to treat surface water. Ideally both operations would be balanced and utilized. Comment – The City spent half a million dollars to keep us out of this issue and to sue us three times. We don’t need the Southeast Surface Water Treatment Facility. Here’s what I say: 30 to 60 million gallons per day in the Northeast Plant would cost less than $100 million, cut use from 140,000 acre-feet per year to 120,000 acre-feet per year, plant drought-resistant plants, cut watering from 22 to six hours per week, recycle 25,000 acre-feet per year, build the ponding basins. 80 percent of water use is agricultural use. Question – What about forest fires? We have really thick forests that should be trimmed so water can flow through. Water after a fire is destroying birds, plants and animals. Runoff is dirty, too. Response – The California Department of Water Resources is working on improving the forest thinning and planning for wildfires. Water Reliability Community Forum Summary Sept. 29, 2014 4 Question – My household uses 185,000 gallons of water per year. However, there are hundreds of new homes being built. Why are we allowing new homes to be built when we don’t have enough water? Question – If Proposition 1 goes through and Congress authorizes Temperance Flat, how long will it take to be built, and how much water will come from it? Response – Construction could take more than 10 years. Question – Where will water be injected into the groundwater basin? If you inject the water, how will that site be selected? What is the hydraulic radiant when you inject the water? Response – The City considered boreholes in existing basins. Basins on the north side typically have percolated hundreds of feet per day, which is very poor. To try and enhance the percolation, we tried drilling 24-inch boreholes 50 feet deep. This year, we got rates up to about 3,400. Through active basin maintenance and cleaning, we will get higher usage. The active recharge plan is more cost-effective. Question – What is the efficiency of a ponding basin? If you put in 1,000 acre-feet into a ponding basin, how much will actually go into the ground? Response – The number will vary greatly because it is natural percolation. It depends on the sub-surface materials. Basins will percolate from less than one-tenth of a foot per day to one half foot or even a foot per day. In Fresno, on average, we lose four feet per year to evaporation. I also want to correct something: agriculture does not take 80 percent of water supply of the state. About 40 percent of state water supplies go to environmental uses, about 40 percent goes to agricultural uses and 20 percent goes to urban and industrial uses. Question – Now that the City of Fresno has installed the residential water meters, how much has the City been able to save? Response – In 2008, the City saved 150,000 acre-feet and in 2014, the City saved 120,000 acre-feet. Comment – How is water kept in the aquifer after recharge and not pumped out in unincorporated areas? We have the State Water Bond coming up, and as I understand it, $700 million of $2.7 billion is for residential use and the rest goes to agriculture. According to the Fresno Bee, farms use five sixths of the water, but I guarantee residents will pay 99 percent of the bill. We shouldn’t be in this position. In terms of planning and being proactive, what about riparian rights and new proposed dams? I don’t think the City gets no fresh water even though the dams are advertised as a fresh water source for families. Comment – I see the City has a budget for cookies. I thank the City for having a third party moderator. The issue here is how much this will cost the consumer to solve the problem. It’s good to see experts here. I love these public discussions. We need to solve the problem conjunctively. The City also needs to develop a water budget. Comment – Each one of these forums should be repeated in each of the areas. Some people can’t attend all of them because they are too far. Question – Is there anything that regulates new developments based on water availability? Response – There is a statute for growth and water availability. Every community must do a water assessment to ensure a water supply for at least 20 years prior to the approval of a house development. Comment – More water will be conserved if restaurants only served water when people asked for it. Water Reliability Community Forum Summary Sept. 29, 2014 5 Question – Have City leaders reached out to Congressional leaders to say we need more money for infrastructure repairs? Answer – The City looks for a variety of ways to partner with state and federal elected officials to find funding sources. One of the programs is funded through Proposition 84. We have one last funding cycle that can pay for some infrastructure. We have to go through a prioritization process in order to decide which projects would receive funding. Question – We have a population of 700,000 people. Why do we only have 135,000 water meters? Response – We have 510,000 people, with typically three people per household. Apartment complexes only have one meter. Comment – There is no mention of water in the City’s General Plan. Question – For newer construction, would it be feasible for non-potable water to be used for landscaping without it infiltrating deep wells? Response – Recycled water is part of the plan. After the question and answer session, the facilitator concluded the forum. Three more community forums will be held from 6 p.m. to 8:30 p.m. on Monday, Oct. 13, Monday, Oct. 27, and Monday, Nov. 10. Locations and additional information is available at www.RechargeFresno.com. Water Reliability Community Forum Summary Sept. 29, 2014 6 City of Fresno Recharge Fresno Water Reliability Community Forum Monday, Oct. 13, 2014 Summary The City of Fresno held the second water reliability community forum in a series of four on Monday, Oct. 13, at Oraze Elementary School. The open house portion took place from 6 to 7 p.m., during which members of the public could visit information stations and speak one-on-one with subject matter experts. At 7 p.m., the neutral facilitator opened the meeting with an overview of the agenda and ground rules for the discussion portion of the forum. A video (available here: http://www.youtube.com/watch?v=VZEWG0U9Zlg&feature=youtu.be) was shown about potential water solutions for the City of Fresno, and its residents and business owners. After the short video, Mr. Tommy Esqueda, director of the Public Utilities Department, gave a presentation about solutions for Fresno’s water situation. He went over the community challenges, including declining groundwater levels, pending groundwater quality standards and the California state Sustainable Groundwater Management Act. The groundwater basin loses the equivalent of one and a half times the size of Pine Flat Reservoir every year. Mr. Esqueda explained that safe and reliable water, affordable pricing, a sustainable and resilient water supply, and being consistent with community values are priority tasks for the City of Fresno. He explained that in a normal year, there are 180,000 acre feet available for use and we are only able to use about 20,000 of it due to limited treatment capacity and the lack of pipelines to transport the water to treatment facilities. About 50,000 acre feet is used to recharge groundwater. Mr. Esqueda proposed a water resource strategy that encompasses a continued emphasis on conserving water to reduce water demands, maximizing available surface water resources, using more recycled water, investing in water system rehabilitation and replacement, and updating aging infrastructure. Mr. Esqueda then presented a list of solutions including recharge basins, conservation programs, raw water pipelines, surface water treatment facilities, treated water pipelines, well and pipeline repairs and replacements, and treated water storage tanks. The neutral facilitator then led a discussion with subject matter expert panelists about Fresno’s water resources. Below are the questions asked of the panelists, as well as the answers given. Comment from Laura Whitehouse, City of Fresno Utility Advisory Committee: For years, the Utility Advisory Committee met and discussed water utilities. Three years ago we came up with a report to present to the City Council. One part of this report is a five year study on what to do with utilities. The difference between what was happening then and what’s happening now is now we’ve been in a drought for three years. So now it’s interesting to see what we presented to the City Council in terms of our recommendations. There are eight points that we came up with: 1) The need for a Southeast Surface Water Treatment Facility, 2) The need to mitigate the threat of groundwater production loss in Southeast Fresno, 3) The need to expand the Northeast Surface Water Treatment Facility, 4) The need Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 13, 2014 1 to replace aging pipes, 5) The need to reduce continued negative impact on groundwater table, 6) The need to provide incentive for conservation through landscaping and irrigation technology improvements, 7) The need to reduce power and energy costs toward groundwater pumping, and 8) The need to move the Department of Public Utilities toward qualification for more favorable interest rates and government grant programs. We presented this to the City Council three years ago. These are the solutions we came up with that we were recommending to the City Council. We became very excited about cultural landscaping. I have always grown up with a front yard that’s green and a backyard that’s green. I took out my back yard lawn and replaced it with drought tolerant plants. At the end of the day we live in California not Seattle and we don’t get as much rain. We have to start thinking differently. Question: If you only had 30 seconds, and you had something you wanted the group to know, what would it be? Response from Martin McIntyre, San Luis Water District – We’re losing a lot of groundwater. If we could actually see, like looking into a lake, what is happening to our water table, we would have solved this problem a long time ago. The universe of water supply in the state is changing dramatically. More and more water is dedicated to environmental purposes. It’s increasingly difficult to secure an adequate supply of water. Up and down the valley today there are communities that are out of water. Competition and costs is going to become increasingly difficult to deal with. The good news is Fresno has an adequate water supply. A very unique position among other cities. We don’t have to worry about where our future water is coming from for now. What we lack, however, is the infrastructure to make use of it. Question: If it’s so obvious, why hasn’t it happened yet? Are there reasons why we’ve waited so long? Response from Martin McIntyre, San Luis Water District: There has been a lack of political will to initiate water infrastructure changes. These problems were known, identified and submitted back in 1992. Fresno also had a lack of political will to implement metering, which is largely attributed to the decline in per capita water consumption. There were forces in the community that tried to prohibit the installation of meters, which are now mandated statewide. Essentially, political will has been the lacking component. Response from David L. Orth, Kings River Conservation District: We actually have been doing something. For the last 10 years we’ve been working regionally with a lot of water agencies in cities through an integrated planning process to identify these overdraft issues and develop strategies through water conservation, water use efficiency and groundwater recharge facilities, and have implemented parts of the vision from the presentation tonight. We’ve added 20,000 acre feet of recharge capacity in the basin. Now we need another 180,000 acre feet of recharge capacity to find a balance. We are doing things. They cost money and take political commitment, but we are working in that direction because we recognize how important it is. Response from Kassy D. Chauhan, California State Water Resource Control Board: The regulation of groundwater has changed drastically over the last several years. There are constantly new regulations being implemented that make it increasingly difficult for water systems to comply with regulations whether it be treatment of groundwater or surface water. There are going to be increased regulations on groundwater and we need to take that into account when we are considering the City’s overall groundwater supply. Response from Alan Hofmann, Fresno Metropolitan Flood Control District: We have been in partnership with the City to put their water in a flood control system to ensure there is always a balance between having enough storage and availability for when it starts raining, and putting the water in the Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 13, 2014 2 basins for groundwater recharge. We want to maximize the amount of water we’re putting in the ground for you. It’s been effective but we just need a lot more water. Comment: I worked with Doug Vagim and would like to share some numbers. We are taking out 134,000 acre feet. There is a potential recharge for 46,000 acre feet, rain going in. So we are taking out 40,000 acre feet more than is going back in. I would cut the 130,000 acre feet of groundwater pumping down to 120,000 acre feet. Then you’d have 45,000 acre feet net going in, instead of 40,000 acre feet coming out. Instead of the City watering 22 hours a week we can cut down to watering six hours a week. Let’s increase the ponding basins from 300 acres to 700 acres. Right now we’ve got 300 acres, makes 50,000 acre feet a year of recharge, add 400 more acres, that would result in 67,000 acre feet of water so you would be up to 117,000 acre feet of recharge. We are doing 20,000 acre feet per year at the Northeast Surface Water Treatment Facility, double that to 40,000 acre feet. Now you’re at 157,000 acre feet a year of total treatment out of 180,000 acre feet from Friant and Kings Canyon. So there you would have 157 out of 180 or 80 percent. I have six recommendations: 1) reduce watering landscape from 22 hours to six hours, plant drought tolerant plants 2) build 400 more acres of ponding basins 3) double the Northeast Surface Water Treatment Facility production from 30 million to 60 million 4) replace aging water mains and replace leaks 5) enter into agreement with Fresno, Clovis and agriculture to create a water budget every year, and 6) limit growth. Response from Tommy Esqueda: The population growth rate we are using is 1.9 percent, which is less than the natural rate of growth in our city. Our growth rate basically represents births over deaths and represents the people living here now. It’s just enough to support people who decide to stay in Fresno. Expanding the Northeast Surface Water Treatment Facility is an idea that we are looking at. What we have learned from the current water strategy is that we have all our eggs in the groundwater basket. So the strategy of building the Southeast Surface Water Treatment Facility is to create a second entry point for water in case canals and pipelines go down. We have a plan for groundwater recharge and we will make more recharge happen in this City because that is a good water management strategy. We want to stay consistent with community values. It sounds like what you are proposing is to have the government intervene and say how much water you can use and what plants you have to plant. That’s not the system we have now but if the values of the community said to restrict water we would head in that direction. Question: Hasn’t the government intervened recently with stage 2 water restrictions? Response from Tommy Esqueda: Yes, but we have no plan in place for the future. That was a recommendation to the City Council. Comment: We are talking about a general plan to take care of the problem now, but we are not looking to the future to take care of the problem then. I mentioned desalination at the last meeting. For example, in Santa Barbara they tested a desalination plant and were able to produce 150 million gallons of water in one day. They have seven of these plants in Florida. It comes down to what we can afford, they’re expensive to run. Besides doing a short term plan, we need a long term plan because Fresno is only going to get bigger. Follow-up Question: When you say desalination for Fresno, the source would be the ocean? Yes, the source would be the ocean. Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 13, 2014 3 Comment: We have such a severe water situation why are we watering 22 hours a week when we should be watering six hours. I want to address something from the last forum, and that is that a secondary treatment plant was built to the tune of $30 million that has been sitting idle on Armstrong and Dakota. How is that going to be brought forth and how will it help us? There is a rat infestation there. Response by Brock Buche, City of Fresno Supervising Professional Engineer: That facility was recently completed, and I can assure you there is no rat infestation there. Right now, we are not putting treated water through the facility but we are utilizing the tank. So as system demands require we pump water out of that tank, we are putting it into the distribution system. That facility was built because we understood that building a large, permanent facility, such as the Southeast Surface Water Treatment Facility, is a major undertaking. With development occurring in that area, there was no groundwater to sustain the area. This package facility was built to meet those demands, and it takes advantage of the surface water supply we have. It is a well thought-out facility, and it’s modular, so we can relocate the pieces and parts that make up the facility if a permanent facility comes online. Question: How many people were on the City of Fresno Utility Advisory Committee? Were any school trained engineers appointed? Response from Laura Whitehouse, City of Fresno Utility Advisory Committee: There were eight people, each person was appointed by a city council member and the mayor appointed two people. One was a retired director of planning for Fresno, a couple farmers, a fundraiser, a professor from Fresno City College and two attorneys. We were appointed because we were citizens from all different socioeconomic groups, with diverse backgrounds and different levels of education. We had technical consultants and city staff who provided technical information. Question: Will you explain contextually how agriculture in Fresno uses recycled water? Response from Gary Serrato, Fresno Irrigation District: We have an excellent program with the City of Fresno. Over at the regional wastewater treatment facility, the city is pumping and exporting everything out to that regional plant. Secondary water that has been treated at the regional plant is recharged back into the underground and then we pump it out and send it to farmers. There is an agreement that every two acre feet delivered out there we supply an acre foot of Kings River water to the city. So we’re keeping water up there, providing it to the city and utilizing wastewater treatment. Response from Kassy D. Chauhan, California State Water Resource Control Board: What you can do with recycled water depends on how much it’s been treated. So depending on the level of treatment you can do different things. The agreement that the City has with the Fresno Irrigation District now is they have to put the water into the ground and then pump it out and put it into canals. Question: What is the plant on Armstrong for? What is it going to do? Is it like the Chestnut plant? When did they start building and finish that plant? When do they plan to start using it? Response by Brock Buche, City of Fresno Supervising Professional Engineer: The plant was built because the ground in that area did not have capability for a well. We take water from the Fresno Irrigation District and run it through the package facility to distribute to the Fresno Irrigation District. Another component of the plan is to construct a pipeline tying the City of Fresno to the City of Clovis to take advantage of water coming from their plant when it’s available. It was started in 2010 and completed in November 2013. Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 13, 2014 4 Comment: I’m concerned about Southeast Surface Water Treatment Facility because if you build the plant people from LA and the Bay Area will come to Fresno. Fresnans can get by without this new plant if we increase capacity at other plants. It would even help if we built a smaller plant and dedicated it to be used for infill. Comment: Why don’t we use water-efficient toilets to conserve water? The ones with two options, one flush verses two flushes. Response from Laura Whitehouse, City of Fresno Utility Advisory Committee: I’ve seen two flush systems in New Zealand and Australia but none of our public places here have that option. That’s a solution, too. Comment from Ron D. Jacobsma, Friant Water Authority: To speak to conjunctive use generally in the valley, we employed a lot of water conservation techniques in agriculture, and it saves energy costs but it doesn’t enhance the overall water equilibrium. What we’re finding is we miss flood irrigation when times are wet because we want to get the water into the ground. Now we don’t have a means of doing that. We encourage all of our member districts to maintain groundwater equilibrium. Comment: Normally people don’t water 22 hours a week. If we only had 6 hours a week there would be too much water pressure during that 6 hours. The 22 hours a week is just so that the watering is spaced, not so that the full 22 hours is taken by watering. Question: What happened to the $200 million of state drought relief money that was awarded to the district but no local district got that money? Response from David L. Orth, Kings River Conservation District: We’ve been successful locally at channeling money into the system. Prior to that, though, the Kings Basin Integrated Water Management Authority has received about $65 million worth of general obligation bond funding so we have the process in place. Comment: Land subsides and can drop many meters when groundwater is over pumped. This graphic shows our water table has been drastically dropping, so how is this going to work? Response from Gary Serrato, Fresno Irrigation District: We are a conjunctive use area. That means we capture as much water as is available to us during flood releases so we can put into the ground so it’ll build back up. Recharge basins are an example. The last time we had a flood release year we put so much water back in that the table rose to within 15 feet of the surface. Because of our soil type, we aren’t facing subsidence. Comment: If you want to talk about community values, I don’t think anyone wants the big trees to die. The conservation factor that doesn’t seem to be being looked at is the use of gray water. Showering, washing clothes, etc. can be put to watering trees. I think gray water should be facilitated by the city. And affordability, I don’t want poor people to be priced out of the water market. We should have a tiered rate. Comment: The Unity Church has water conservation toilets. We have two developments that have lakes, getting ready to build a third. Do lakes recharge? Who is going to pay for the development of the Southeast Surface Water Treatment Facility? I’m concerned about groundwater impacts from fracking. Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 13, 2014 5 Response by Brock Buche, City of Fresno Supervising Professional Engineer: Lakes are a great amenity but it’s not the greatest use of a resource. The City has a rebate program that encourages citizens to have their home or business inspected to promote conservation. Response from Kassy D. Chauhan, California State Water Resource Control Board: The California State Water Resources Control Board will be studying fracking related to drinking water. There are concerns with gray water, because water quality problems can occur with gray water. We don’t want to solve one problem and create another one. Regardless of the use for water that comes out of ground, if it is coming out of Fresno’s water system it has to meet all drinking water standards. Response from Kassy D. Chauhan, California State Water Resource Control Board: The drought is real. The Department for Clean Drinking Water is dealing with a lot of communities who have no water. Water conservation is so critical. Fresno is in a unique position because we have water supplies but we lack the infrastructure to treat it. Comment from Tommy Esqueda: It sounds like we agree that conservation continues to be part of our strategy. We’re doing it, but we can do more. It also seems like we agree on the idea that we have an aging infrastructure and we’re on a replacement cycle of more than 300 years. We need to repair the system and keep it viable so it’s not leaking and breaking. There is a general agreement that we should fix the stuff we already have. We like the idea of recharge, and we are currently doing recharge. We’re in a unique position with our subsidence and we have a very responsive aquifer under us so that when we do recharge, the water goes down there and it stays down there. Recharge continues to be part of the portfolio that we want and we continue to maintain our partnerships to get more access to that. Where we still seem to have some challenges is should we or should we not make the investment to get water from the mountains and bring it into the City. The neutral facilitator concluded the meeting and invited the community to the next Water Reliability Community Forum on Monday, Oct. 27, at 6 p.m. at Rutherford B. Gaston Middle School at 1100 E. Church Ave., Fresno, 93706. Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 13, 2014 6 Water Utility Financing Summit – Summary Page 1 City of Fresno Recharge Fresno Water Utility Financing Summit Monday, Oct. 20, 2014 Summary Participants Stephanie Babb Greater Fresno Apartment Association Ryan Cogdill Howard Jarvis Association Gladys Deniz City of Fresno Utility Advisory Committee Jason Duke Fresno Unified School District Rachel Eslick Fresno Chamber of Commerce David Herb Local Advocate Alfonso Hernandez La Tapatia Randy Hergenroeder Busseto Foods (CFO) George Hostetter The Fresno Bee Myrna Lewis La Tapatia Leland Parnagian Economic Development Board: Fowler Packing Co. Michael Prandini Building Industry Association Tim Thiesen Fresno Taxpayers Association Doug Vagim Initiative Proponents Steve Wayte Initiative Proponents Laura Whitehouse City of Fresno Utility Advisory Committee Nick Yovino City of Fresno Utility Advisory Committee Josh Ziese State Water Resources Control Board Presenters Tom Pavletic Municipal Financial Services Mike Lima Controller and Finance Director, City of Fresno Bruce Rudd City Manager, City of Fresno Thomas Esqueda Director of Public Utilities, City of Fresno Henry McLaughlin Chief of Administrative Services, City of Fresno Water Division Brock Buche Chief of Engineering and Planning, City of Fresno Water Division Facilitator Lewis Michaelson Katz & Associates Agenda Introductions and Agenda Review Lewis Michaelson 10:30 a.m. – 11 a.m. Water Resource Challenges and Proposed Solutions Brock Buche 11 a.m. – 11:45 a.m. Funding Sources/Cost Implications Mike Lima 11:45 a.m. – 12:30 p.m. Cost Recovery Tommy Esqueda 1 p.m. – 1:30 p.m. Customer Water Meter & Consumption Characteristics Henry McLaughlin 1:30 p.m. – 2 p.m. Cost Allocation and Rate Structure Alternatives Tom Pavletic 2:15 p.m. – 3:15 p.m. Other Considerations Tommy Esqueda 3:15 p.m. – 4:15 p.m. Wrap Up Lewis Michaelson 4:15 p.m. – 4:30 p.m. Water Utility Financing Summit – Summary Page 2 Welcome and Introductions Mr. Michaelson opened the meeting with introductions and with an overview of the purpose of the meeting which is to provide a forum for in‐depth discussion of the funding options available to the City of Fresno to pay for large capital expenditures, and the ways these costs are recovered by utilities. Presentation 1: Water Resource Challenges and Solutions Presenter: Mr. Brock Buche Mr. Buche presented an overview of the City of Fresno’s water resources, current water resource and delivery challenges, and recommendations made to date to address those challenges. Discussion  Participants discussed the City of Fresno projected growth and demand rate of 1.9 percent, which impacts planning for future water demand. Mr. Esqueda noted that Fresno’s projected growth rate is low and is would not cover the students currently in the Fresno Unified school system assuming all current students choose to stay in Fresno.  Mr. Vagim said that Recharge Fresno is about future growth and reflects the “if you build it, they will come” mentality. He said that the city still has ample groundwater and federal agencies are not going to cut the city off from these resources. He stated that having water will solicit growth.  Mr. Vagim also said that Fresno needs to collaborate with its neighbors since groundwater is a regional issue.  Mr. Vagim said that Recharge Fresno is based on broad assumptions and that the U.S. Geological Survey does not know how much groundwater is available. He stated that we don’t know how deep the aquifer is because we don’t have the money to understand.  Mr. Vagim requested that the City come up with a water budget and the State require a water budget.  Mr. Vagim said Fresno has the same problem with water now that we had with air quality in the 1990s. He said Fresno needs economic resources to study the problem.  Mr. Esqueda stated that Mr. Jonathan Traum from U.S. Geological Survey attended the first community forum, and said the aquifer loses the equivalent to one and a half Pine Flat Lakes per year.  Mr. Prandini (Building Industry Association) said that the building community will be paying a proportionate share of the 1.9 percent growth rate.  Discussion continued related to proposed capital plans and resources, including the pros and cons of intentional recharge versus construction of a new surface water treatment facility, but the facilitator reminded the group that that discussion was outside the purpose of the meeting today.  Mr. Vagim asked questions regarding the Kern Canal, Enterprise Canal, and the T‐3 Storage Tank.  Ms. Eslick (Chamber of Commerce) asked about how deep the City can drill for water. Mr. Buche stated that the furthest the City can drill is about 800 feet. Presentation 2: Funding Mechanisms and Cost Implications Presenter: Mike Lima  Mr. Lima presented information about the advantages and disadvantages of various funding mechanisms, including developer fees, “Pay as you Go” (PayGo), grants, loans and revenue bonds. Discussion  Mr. Duke asked about cost reductions through production and deferred maintenance program; discussion was deferred until after financing and rate presentations.  Mr. Vagim asked who picks up the biggest fee for a water line in new areas. Mr. Prandini responded that developers would pick up the fee. Water Utility Financing Summit – Summary Page 3  Mr. Prandini said that development fees pay for and can effect capital expenditures like water lines, sewer lines. His fees go to the City and other developers who tap into the line also pay.  Mr. Vagim asked if PAYGO part of the base for the revenue bonds. Mr. Lima said that PAYGO and bonds are usually all part of the equation for infrastructure projects.  Mr. Ziese discussed the amount of money available for loans, and said the State Water Resources Control Board is seeking to expand that amount as there is a significant need and demand for that funding. He also said that Drinking Water State Revolving Fund is operating as a bank on a cash flow basis. Right now an annualized basis is around $100 million to $150 million. They are just now beginning to assess growth rate and demand.  Attendees also discussed debt, how the City approves revenue bonds, the latest Fitch Report and ratings for the City of Fresno, and sources of funding to cover revenue bonds (ratepayer and developer fees). Presentation 3: Cost Recovery Presenter: Tommy Esqueda Mr. Esqueda presented information about cost recovery vehicles which, for water utilities, predominantly involve user fees or taxes. He also presented information about regulations and industry standards which stipulate the ways in which rates are developed including an emphasis on proportional distribution of cost of service. A summary of advantages and disadvantages of user fees versus parcel based tax systems was presented. Discussion  Mr. Wayte said that he would like to return to flat fees as he feels he is subsidizing the water usage from other municipalities like the City of Sanger. Mr. Esqueda stated that the meters and current fees are supposed to represent how people use water proportionally.  Mr. Vagim said he is interested in parcel based tax and used school funding as an example of how this could apply to water services. If you are in a house with no kids and have a higher assessment, then you pay more even if you don’t have kids. If water is so important let’s not throw out the idea of a parcel based tax. Mr. Vagim equated the value of education to the value of water. “For example: Metropolitan Flood Control District did a benefit assessment so people who lived in flood zones paid more. It was flat and those rates went down as the bonds were paid off. A participant responded that 46 percent of Fresnans rent, which would make the parcel assessment difficult and would not provide equity.  Mr. Herb stated his concern about creating a usage fee when the City is encouraging conservation. He suggested that the developer fee be enhanced. Mr. Herb made the analogy of a franchise. He said that there is a value for developers in having access to the City of Fresno water system versus developing their own system, and developers (or users) should have to pay a fee for the privilege of having that value. Much like a coffee shop – you can open an individual coffee shop or you can open a Starbucks – you will pay more because of the value that comes with that brand or franchise. Mr. Prandini replied that the City got away from the UGM concept some years ago and noted that there is also a connection fee, in addition to the impact fee.  Attendees further discussed parcel based tax: o If there is parcel based it doesn’t encourage conservation o Other municipalities use PAYGO and developer frees o A parcel‐based tax would require voter approval  Mr. Wayte asked if and when the rate increases or bonds end. Water Utility Financing Summit – Summary Page 4 Presentation 4: Customer Water Meter and Consumption Characteristics Presenter: Henry McLaughlin Mr. McLaughlin presented information about the ways in which different classes of water users (irrigation, single family residence, and nonresidential) use water on a given date and throughout the year. He then explained how this usage information is important to the rate making process based on charging for proportional water use and impacts to the water system. Discussion  Mr. Vagim stated that he thinks sewer and drinking water rates should be proportional to one another. He mentioned that in many areas, sewer bills are based on usage during certain times of the year (winter months when outdoor use is reduced), since indoor use affects the sewer system versus outdoor use. Presentation 5: Cost Allocation and Rate Structure Alternatives Presenter: Tom Pavletic Mr. Pavletic described the way rate makers approach the rate development process analyzing revenue requirements, allocating revenue requirements proportionally to users, and then designing rates which to include fixed charges and variable charges. He then described options of uniform rates for all classes of customers, uniform rates for different classes of customers (residential, non‐residential, irrigation, etc.), and tiered rates for either all customers classes or select customer classes. Discussion  Mr. Wayte suggested consideration of a hybrid model where developers pay more. Mr. Prandini responded that law doesn’t allow for what Mr. Wayte suggested.  Mr. Vagim asked how 180 cubic feet (cf) per month was agreed upon as an “average.” Mr. Pavletic referred to the 2013 Water Rate Study which indicated 180 cf but was prepared when the City had no meter data for single family residences. The appendix lists seven or eight ways that usage was analyzed. Mr. Pavletic noted that, as a rate consultant, estimates have to be conservative to ensure that revenue is covering debt. If revenue is too high after implementation of a new rate, the City Council then can delay rate increases or even reduce rates without having to through a Proposition 218 process. If too low, then additional rates, and a 218 process, would be required.  Mr. Vagim asked about the American Water Works Association M‐1 Manual section on private funding. Mr. Pavletic responded that if a company such as California American Water Company owned the City of Fresno water system, then then they would get a rate of return on the value of the capital. Mr. Rudd said that bond holders are investors, and they are also looking for a rate of return.  Mr. Vagim suggested that the empty lots in the Tower District should downsize their meters as it would save $60 to $70 per year. Mr. Vagim said his point is that there are other people who should have different size meters. Mr. Esqueda said that he would look into this further.  Ms. Eslick asked if the City of Fresno can attach numbers to tiers. Mr. Pavletic responded stating that the City of Fresno doesn’t have the analysis for this.  Mr. Cogdill (Howard Jarvis) asked how the City of Fresno would justify the rate points between tiers. How would those be set so they are not arbitrary? Mr. Pavletic stated that he only recommend two tiers because of the lack of data. Mr. Winer added that he justified two tiers based upon the average usage and showed this through a graph included in the PowerPoint presentation. Mr. Cogdill said that the system would have to be equitable and justifiable. Presentation 6: Other Considerations Presenter: Thomas Esqueda The final presentation focused on other potential funding sources or opportunities to minimize cost impacts on customers. Among discussion items were affordability evaluations (Community Water Utility Financing Summit – Summary Page 5 Development Block Grant guidelines, etc.), subsidies for low income customers, and conservation rebates or financial aid. Discussion  Mr. Duke discussed his interest in recycled water programs and inquired about deferred maintenance programs. “What are the figures for proposed reductions in operations and maintenance, cost avoidance or deferred maintenance? Where’s the sustainability piece to what Fresno wants to do? We serve 70,000 kids and a lot of water goes through the school.” Mr. Duke said that he would like to apply for the State’s DROP program for recycled water. (The facilitator clarified that the reference to “sustainability” was specific to actions that would save money and reduce rates.)  Ms. Deniz suggested that Community Forum #3 include information about: o What is the baseline? o How do you allocate priorities? o How much can we afford during each 5 year period?  Mr. Herb concluded that we need to put an effort into figuring out a “franchise fee” to decrease the cost for other users.  Mr. Yovino suggested that Community Forum #3 summarize the first two forums, and find a simple way to simplify funding and rate information which is the most complicated  Mr. Theisen confirmed that the City of Fresno has a base rate and consumption (variable) rate, and he stated that this is the fairest way to distribute the costs. He asked how much money is received by the Water Division and what portion goes to infrastructure. Mr. Esqueda stated that of the $70 million annual budget about $2 million to $4 million goes to fix existing infrastructure. Mr. Theisen responded that the City has historically low‐balled this portion of the budget, and it needs to be addressed so that 20 years from now, the City will not be back at the table and still behind the curve on infrastructure. Mr. Theisen also stated that he dislikes tiered rates, so this needs to be a flat rate. He suggested that the rate be based on consumption and “one simple rate.” He also reiterated that the City cannot let the opportunity of using surface water go by. The City has access to two rivers and must take advantage of this. “We need to get ahead of the curve.”  Ms. Babb expressed her concern that the more the rates are delayed the more this impacts the apartment owners’ ability to budget. Her association members had already budgeted for the four year increase and now don’t know what to budget for.  Mr. Vagim expressed that CDBG and PACE programs still need to be discussed. Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 27, 2014 1 City of Fresno Recharge Fresno Water Reliability Community Forum Monday, Oct. 27, 2014 Summary The City of Fresno held the third water reliability community forum in a series of four on Monday, Oct. 27, at Rutherford B. Gaston Middle School. The open house portion took place from 6 to 7 p.m., during which members of the public could visit information stations and speak one‐on‐one with subject matter experts. At 7 p.m., the neutral facilitator opened the meeting with an overview of the agenda and ground rules for the discussion portion of the forum. A video (available here https://www.youtube.com/watch?v=OzU‐uEcA0E4&feature=youtu.be) was shown about securing the water future for the City of Fresno. After the short video, Mr. Tommy Esqueda, director of the City of Fresno Department of Public Utilities, gave a presentation reviewing water supply challenges, including aging infrastructure and declining groundwater levels. He explained that the Sustainable Groundwater Act regulates levels of groundwater being pumped and how that affects Fresno’s water future. He also covered a series of projects, including conservation programs; well and pipeline repairs and replacements; recharge basins; raw water pipelines; surface water treatment facilities; and treated water pipelines. Mr. Esqueda then introduced Mr. Mike Lima, the finance director for the City of Fresno. Mr. Lima explained how the City would go about paying for large investments. Mr. Lima explained the benefits and downsides of each option, including PAYGO, developer fees, grants, loans and bonds. He explained that the best method would be a combination of methods including 21 percent with cash sources, 12 percent low‐interest loan debt and 67 percent bonds. Mr. Esqueda emphasized that water rates must be proportional to the cost of service under the California Constitution, as well as the American Water Works Association guidelines. The first option when designing rates is a uniform rate. Everyone pays the same unit rate (currently $0.61) in a uniform rate. The second option when designing rates is a uniform rate based on class. This means that residential, nonresidential, and irrigation classes all pay different uniform rates. The third option when designing rates is a tiered rate. This means that there is a rate for the first tier of water use and an additional charge for higher usage. The neutral facilitator led a discussion with expert panelists about investing in Fresno’s water infrastructure. Below are the questions asked of the panelists, as well as the answers given. Gladys Deniz, City of Fresno Utility Advisory Committee, Comment: We appreciate the infrastructure that Fresno has built. Water is important to invest in for the sustainability of our future. We are looking at an option of providing surface treatment facilities to capture the surface water from the Kings River and San Joaquin River. That infrastructure is necessary to build in a sustainable plan for our future. We have tapped into the least costly provision for water‐drilling wells, putting in pumps. We are fortunate to have the aquifer. With a 30 year decline in that aquifer we must bring online surface waters to facilitate the sustainability of providing future investment in Fresno. People should say this is a safe Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 27, 2014 2 place to live. We need a sustainable water supply. The Utility Advisory Committee was privileged to listen to all the experts from the City and other external experts that provided information on how we can improve the city’s water with the least cost to the public. Jeff Roberts, Granville Homes, Comment: Investments should be made in the water system. Water is something that is a necessity. For any community to survive there must be a reliable water supply. There is not a lot of flexibility for developers in terms of what we can do to affect that other than the characteristics we can build into our homes and neighborhoods to be water‐wise. This drought has given the development industry a reality check, and we are doing things that we’ve never done before, like offering synthetic lawn in some of our developments and changed the fixtures to make them more efficient. These are some things we can do but when it comes to what the City can do, we have to look to them for expertise to see what type of system needed. When we are asked to build a part of that system, it is our responsibility to do that so we can enjoy the benefits of water directly to homes and the city facilities. Doug Vagim, Measure W Proponent, Comment: What are our Fresno needs now? What are our Fresno needs in the future, plus and minus how much growth you want to add to Fresno? This plan estimates growth of another 250,000 people, increasing our population to 750,000 people. The problem is, who is going to pay for those new people? Under the old system, developers were pitching in. This new system is the reverse. The plan that was defeated by this initiative proposed nearly 70 percent debt. They tell us Fresno is out of water, but last year water was sold for $325 per acre foot to a district outside Fresno County. What is your expense? How much water do you have? How much water do you really need? Because I’m saying they don’t need that plant in the southeast. 71 percent of the proposed rate increase will be used for the new surface water treatment facility. The City of Fresno should give back the 14 square miles for the treatment facility. Tommy Esqueda, Director of Public Utilities, Comment: One way to look at our water situation is the state regulations. The regulations say that local governments should use surface water supplies for primary use so the groundwater can recharge, and then in periods of drought, groundwater will be available. So why didn’t we do it 25 years ago? I’ve been here four months, and I’ve been asking myself that question. The groundwater table has been falling, we have had groundwater contamination in this city before, we have to take wells offline, we lose pressure, your irrigation systems don’t work and we are there again now. When the new state groundwater regulations go into effect, it could require Fresno to take out 55 million gallons a day of production we have today. If we don’t have replacement water available, there will not be pressure in the system. We will have to come up with a solution and present it to the state. With these new state requirements in place, our current water system is not sustainable. Martin McIntyre, San Luis Water District, Comment: I know a little bit about why that plan didn’t get implemented 25 years ago. It’s a consequence of politics. Nobody wants to raise utility rates. The problem in the long term is if you don’t make timely adjustments to rates and reinvest in the system, you will have a failed system. The appropriate utility rate is the rate that can sustain a long term viable water supply system. What companies hear when they want to locate to Fresno is that our water system is weak. The City of Fresno did sell some water this past year. That water was all delivered on the west side of Fresno County, and they sold the water because it was an asset and they weren’t able to make use of that asset otherwise. It was logical to sell some of that asset, put it in the bank to help with the PAYGO alternatives. Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 27, 2014 3 Tim Thiesen, Fresno Taxpayers Association, Comment: The burning question is, why didn’t we do this 25 years ago? Nobody likes to raise rates. We need to take advantage of the resources we have. Fresno is in a very unique situation that we have two rivers to draw on and that is something that we can’t ignore. If we don’t have a plan in place for what we are going to do, the State of California will step in and they will give us a plan, which will be extremely painful. Kassy Chauhan, California State Water Resources Control Board, Comment: The way that we have done business up until now is changing. We have talked about the fact that we have been able to rely solely on groundwater and that those days are changing and it is quickly coming to an end. The TCP regulation is coming quickly, probably in the next year or so. That will require initial monitoring within six months of adopting that regulation. Within three years after that if you are out of compliance, the City will have to demonstrate to the state how they are going to come into compliance. The City has been through this before, but they are now going to potentially lose about a sixth of their source of supply. The other side of the coin is that the days of pumping as much from the ground as we want are coming to an end. You are going to have to demonstrate that you have a plan in place to replenish whatever water is pumped. The governor recognizes that this is important, which is why he adopted and signed into law this regulation. We have to do something here in Fresno to ensure that we are not over drafting the groundwater basin. I have heard comments about why we can’t keep pumping, and that there is an infinite amount of water in the aquifer. That is simply not true. There may be enough water, but is it good quality water that we can use? The answer is with stricter regulations, it’s becoming more and more expensive to use solely groundwater as a source of supply. Question: When you talked about Community Development Block Grant money, why didn’t you talk about the audit that was done in 2012 and how much money of that the City is going to have to pay back? Why plant 360 acres of almonds that are watered every day, when people are losing their wells because of that. How much money did the City make on the water sale? Why do we have a $13 standby fee just to have the water sitting there? Jeff Roberts, Granville Homes, Response: About a year and a half ago Granville Homes got involved in this property that had become somewhat of an eyesore in southwest Fresno. There was a failed attempt to develop the property into a golf course and residential development, and it had become a dumping ground. We bought the property with the understanding that we would try and farm the property in an interim basis while waiting for the market to catch up. We spent a lot of money cleaning up the property and planting the almond trees with the most efficient irrigation systems. I think that we have gotten that property to a much cleaner, better state than it was several years ago. And the water use is not only being pumped, but it is set up to take advantage of the Fresno Irrigation District (FID) supply. We worked to bring back that supply to the property so it wouldn’t require pumping. That property has been farmed for more than 70 years through a combinations of FID water and groundwater. In the future when the property is developed into homes it will use the same amount of water it does as a farm for almonds. Tommy Esqueda, Director of Public Utilities, Response: Regarding your question about a standby fee, we have the pumps running all the time. Any given day of the week we are running electricity, chemicals, carbon, broken pipes and leaks. The water is there pressurized for you. We can’t just turn it off. There is an inherent cost of keeping the system pressurized, and at any given time of the day we have about 20 wells running to keep the system running. The $13 is variable based on the meter size. Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 27, 2014 4 Question: On the standby fee, for the average citizen its $13 but you’re saying for businesses and bigger lots it is different? Response: Yes, the cost will increase or decrease proportionally. The standby fee can be from $10 to up to $700 or $800 based on the meter size. Question: If you are looking at a dime and you’re looking at a nickel and you’re throwing away the dime because it looks smaller, where is your sense of economy? What guarantees that the surface water treatment facility will get us an incredible water treatment system? As for the developers, if you are going to use a property, please invest in a percolation pond. If the electricity is so expensive to run a well, put solar energy panels on top of the percolation pond. Water is needed but we need good sense. We do not need opulence, we need simple things that work. Tommy Esqueda, Director of Public Utilities, Response: In June 2013, the City hired an engineer to design a water plant. The original plan for that project was about $200 million. As a result of the effort that Mr. Vagim has brought forward and direction from the council, that plant is now smaller, as is the investment. I appreciate the idea of solar, but we need power around the clock, especially at night when the pumps are running. We are doing some solar, but it is not practical for us to be using it on the pumping system right now. Comment: The Southeast Surface Water Treatment Facility appears to be new development, and as such, it should be paid for by developer fees. If development fees were higher, it might slow down development which would then reduce demands on the water system. I don’t believe developer fees adequately cover the cost. Also, a lot of communities in California are using tiered rates successfully, and there are state guidelines on how to implement tiered rates. It is because of high water users that our groundwater has dropped so much. The level ‘A’ users should bear the brunt of that through tiered rates. Put fees on the level ‘A’ users to pay for this project. Tommy Esqueda, Director of Public Utilities, Response: The State is going to come in, in January, and have us come up with a plan to correct the problem we have right now. We have a hole under the city that is about 600,000 acre feet. The only way we are going to solve this is to stop pumping. The first thing you do when you find yourself in a hole is stop digging. Comment: I have no problem with investing. You can even double my water rate. But, you are going to have to deliver something. If I am going to pay twice as much, I expect something in return. I’m not convinced that this plan is going to carry us into the future with a state‐of‐the‐art system. It solves the immediate problem and the State issues, but where does it put us in the future? Tommy Esqueda, Director of Public Utilities, Response: One of the things we considered in this plan is using a tried and true technology for the surface water treatment facility. We have something that is in use that is very tried and true and will be needed to carry us into the future. Comment: I was on the Utility Advisory Committee. We made the recommendation three years ago that we increase the rates. I was under the impression three years ago that the Southeast Surface Water Treatment Facility was being built to combat possible contamination of the wells in the southeast. When I go into Starbucks, I spend more than $0.61 on an iced tea. Why are we in such an uproar over a $25 monthly increase over the next few years? I am a real estate agent and I am more worried about the devaluation of property in Fresno. If I don’t have a yard that looks nice, if we don’t have parks, if our trees are dying, our property values are going to go down drastically. Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 27, 2014 5 Comment: The City has a UGM process to cover the cost of developers at the fringe of the city. Building and connecting their system will totally interconnect both systems. It does a good job above covering those costs. Developers are required to prove when proposing a new subdivision that they have a sustainable supply of water for 20 years, and hooking into that system is like buying into a franchise. If you want to hook onto the City’s water system you should pay a franchise fee which could go toward dealing with some of the costs of establishing this new infrastructure. If $1.5 million to $2.5 million a year of CDBG money could be freed up, it would reduce the cost of infrastructure for inner‐city residents. The fastest way to establish a built‐in conservation program is to have a progressive tiered rate structure. Pay for what you use and if you use too much, you have to pay more. Comment: I recently read that 10 percent of the potable water in America is lost to waste and leakage in the pipes. Fixing our infrastructure is one thing that should be done regardless of whatever happens with building a new treatment facility. That would be one way we could stop digging and reduce the amount of water we are using. I have heard from a couple people to just stop growth in Fresno. Unfortunately when you stop building homes, the cost of the available homes increases. As we all saw in 2005 and 2006 before the price decline, the price of homes became unaffordable for some Fresno citizens. If we cut off southeast Fresno and refuse to build any new homes, it will make the cost of housing too much to afford. Where do multi‐family homes fall into? Do they fall into the residential category? Tommy Esqueda, Director of Public Utilities, Response: Multi‐family homes fall into the non‐residential category. Comment: Here’s what we can do to stop the Southeast Surface Water Treatment Facility from being built: reduce watering landscape from 22 hours to six hours, plant drought tolerant plants, limit growth, develop a water budget, double the Northeast Surface Water Treatment Facility production from 30 million gallons per day to 60 million gallons per day, add 400 more acres of ponding basins, implement tiered rates, replace aging water mains and replace leaks. Comment: When we object to paying more, we forget about all the years that we were underpaying. If we want a future for this community, we need to compensate for those years. Water is a valuable commodity, and if we don’t have it, our property values are going to plummet. I strongly support using tiered rates that will be used to pay the bonds for this project. I think we need to invest exactly what the city proposes because we need our future. Question: Is it true that 71 percent of the Southwest Surface Water Treatment Facility was not needed? In a previous meeting, it was stated that the plan was to bring a 72‐inch pipe from Clovis, am I to understand that those pipes connect to the plant on the south to somehow recharge it? Martin McIntyre, San Luis Water District, Response: Southeast Fresno is not a amenable to recharge. The soils are tight and the groundwater is weak there. This plant is principally to serve that portion of the community which has weak groundwater and also is where the greatest amount of TCP is located. East Fresno would be in big trouble if we don’t have a plan to replace that groundwater. Tommy Esqueda, Director of Public Utilities, Response: If we used a pipeline we would figure out a way to put the water into recharge basins that would travel a long way. It would serve two purposes, one would be to feed the plant and the other to feed recharge basins. Recharge Fresno Water Reliability Community Forum Meeting Summary Oct. 27, 2014 6 Question: Under this plan, I understand that you want to get this surface water treated, so where is the groundwater recharge component coming from? How long will that recharge take to fill up the hole? When you get your recharge done, what is going to happen to regional water movement? Tommy Esqueda, Director of Public Utilities, Response: There are recharge basins located all over the city. Right now we take some of the surface water and take it through canals and drop it into recharge basins. We have met with the Fresno Irrigation District to build more basins. The problem with building basins is that nature tells you where to put the basin. We have to work together to figure out where in the city we can put a basin. We have about $10 million more in this plan to add recharge basins. Gary Serrato, Response: The quickest way to get groundwater recharge is to build a surface water treatment facility. You’re able to treat surface water and deliver it to the household while shutting off pumps. There is underground water movement, but when you are putting water into the hole, it will most likely stay there. Tommy Esqueda, Director of Public Utilities, Response: Out of 180,000 acre feet, right now we’re using 50,000 acre feet to recharge. In the future, on a good year, we could add an additional 50,000 to 60,000 acre feet to these recharge basins. Comment: We have at least 100,000 customers in this water district. If we give $10 each on this infrastructure that is at least $1 million each month. You’re talking about raising it $25 a month, that’s $200 million. Comment: I’m not anti‐growth, but I am anti‐sprawl. However, there is a very big lack of trust among the residents because we have seen things like Operation Re‐zone. I’m curious when you say the developer fees cover the costs. I imagine the pipes have a lot to do with maintaining the cost of water. I know the facts of life, it is cheaper for developers to go buy 30 to 40 acres on the edge of town and build a whole new development. I think that a lot of the people are suspicious of the cost and whether or not the developers are truly paying their fair share. Comment: Why are we talking about rates when we don’t have a plan yet. Comment: My concern as a business owner is that we talk about a fair, equitable, pay‐for‐what‐you‐use system and then we talk about a tiered system. Pay‐for‐what‐you‐use is not a tiered system. That means everyone pays the same. Now, I’m hearing about this standby fee that appeared on our bill a few months ago. $13 is a lot to some people but not so much to others. Commercial peoples are paying 8 to 10 times more already because of some of the tiered system rates. Did you look at a system where it is tiered verses pay‐for‐what‐you‐use? Tommy Esqueda, Director of Public Utilities, Response: We are looking at many different options. Currently, we have a uniform system by classification of user. Comment: Part of the reason we have skepticism in our community is that we do have a lack of trust. I believe that before you sell the plan, you really need to have something in writing for people to see. What are the options? What are the costs? It’s about being totally transparent. If people have a better understanding they’ll embrace it more. Tommy Esqueda, Director of Public Utilities, Comment: We have one more community forum on Nov. 10, and we will share the preliminary proposal that we would make to the Council in November. := ilCf IV ED Agenda ltem: lD#14-561 (5:00 P.M.) ,,ii'l ¡,iu is Pn ? T'l Date: Ltl2olt4 üîy clrRri, FRrt|ßfisNo clTy cou Ncl L City ofEEDEêI.IS\I/zfnE=iEz¿¿N-- Supplemental lnformation Packet Agenda Related Items - lD#14-561 (5:00 p.M.) Supplemental Packet Date: November 2O,2Ot4 Item(s) Receive report of findings and summary of discussions from the Recharge Fresno Community Forums and direct City staff to initiate the Proposition 218 hearing process for proposed changes to the schedule of rates, fees, and charges for public water service and setting the public hearing for Febru ary 5,2015, at 5:00 p.m. Supplemental lnformation : Any agenda related public documents received and distributed to a majority of the City Council after the Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600 Fresno Street, during normal business hours (main location pursuant to the Brown Act, G.C. 54957.5(2). ln addition, Supplemental Packets are available for public review at the City Council meeting in the City Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City Clerk's website. Americans with Disabilities Act (ADA): The meeting room is accessible to the physically disabled, and the services of a translator can be made available. Requests for additional accommodations for the disabled, sign language interpreters, assistive listening devices, or translators should be made one week prior to the meeting. please call City Clerk's Office at 62L-7650. Please keep the doorways, aisles and wheelchair seating areas open and accessible. lf you need assistance with seating because of a disability, please see Security. ,IfCiIVED i'litì i{ûU i 3 Pn ? ?7 city of Fresno Recharge Fresno Water Reliability Community Forum CITY OLERii, FRESHT CA MONdAY' NOV' 10' 2014 Summary The City of Fresno held the final water reliability community forum in a series of four on Monday, Nov. LO,20L4, at City Hall. At 6 p.m., the neutral facilitator opened the meeting with an overview of the agenda and ground rules for the discussion portion of the forum. A brief video (available here https://www.youtube.com/watch?v=V_LOZmlB2yM) was shown about securing the Fresno's water future. After the video, Mr. Tommy Esqueda, director of the Public Utilities Department, gave a presentat¡on that reviewed topics covered during the previous three forums including Fresno's water resources and challenges; potential solutions for addressing water challenges; and ways in which to pay for water improvements along with ways to minimize rate impacts to customers. Mr. Esqueda discussed challenges the City of Fresno is facing including the 20L4 Sustainable Groundwater Management Act which requires "robust conjunctive management of surface water and groundwater resources," and pending groundwater quality regulations for TCP levels which, if enacted, would impact approx¡mately 80 existing wells. Mr. Esqueda reaffirmed the fact that even if the City of Fresno had plenty of groundwater, the 2014 Sustainable Groundwater Management Act would regulate groundwater pumping. The City needs to begin balancing the groundwater system. Mr. Esqueda reviewed solutions identified to date to balance Fresno's water portfolio and reduce dependence on groundwater, and discussed investment financing options, including water rates and charges. Mr. Esqueda then reviewed the types of comments heard from community members throughout the community forum process, including comments submitted online and via the program information line. These included: Fresno's Water Supply: ' We need water to preserve our landscaped areas and protect property values.. We have plenty of groundwater and there is no problem. ' New surface water treatment facilities will attract growth and prompt development ¡n southeast Fresno.. Why are we paying for surface water and not using it? ' What happens to revenues generated from the sale of the City's unused surface water? Rates, Revenues and Spending:. Water affordability and equity are important.. We have been underpaying for water for too long. ' The water program costs are too high and water service will be unaffordable.. New development should pay its fair share of program costs. Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. 10,2014 L . Existing water users should pay their fair share of program costs. ' The City should adopt a tiered-rate system to allocate more costs to large water users. ' The City should adopt a uniform rate system to equitably allocate costs to all water users. General:. Repair of aging infrastructure is important and necessary. ' The City has credibility issues (delivery of projects, transparency, compliance with adopted plans), ' The City should consider other water supply opt¡ons - desalination, rainwater harvesting, more recharge, more conservation, grey water, and cloud seeding.. The plan was developed too quickly and without input from the community. ' Why has the City waited so long to address the City's groundwater quality and quantity issue? Mr. Esqueda explained the process of creating a recommended plan and how it must: . comply with laws and regulations . implement surface water treatment ¡ enhance water conservation ¡ continue rehabilitation and replacement of existing infrastructure o continue groundwater recharge He then explained the preliminary recommendations that are being considered for presentation to the City Council. These recommendations include: ¡ initiatinga Proposition 2L8 processfora revised capital plan and a revised rate plan ¡ adopting a uniform rate for all customer classes ¡ deferring considering of tiered-rates for at least five years to collect more usage datao basing the revenue plan on user charges and new development fees as well as pursuing all grant opportunities, including cash and state low interest loans to fund program along with revenue bonds r initiating Water Capacity Fee Study for new and expanded connections to the water system¡ directing staff to update Water Shortage Contingency Plan to allow one day per week watering during winter He explained that two capital plan options (5429 million and 5406 million) are being considered for presentation to the City Council. The plans comply with all state regulations that will be implemented in the next 12 months. He explained that the original plan (associated with the 20L3 rate increase that was rescinded in 2014) had higher monthly rates and that the City worked to lower the rates in both the preliminary plans. ln 2019 a monthly water bill of $5L.36 would include: . 533.66 just to "keep the lights on," including basic expenseso $5.38 for rehab and replacement . S0.21 for groundwater recharge . S12.11 for water supply and distribution Following the presentation by Mr. Esqueda, the facilitator led a discussion with the public about the preliminary recommendat¡ons presented. Below are the public and panelist comments. Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. L0, 2014 2 Comment: I have attended some of the meetings and I am a Measure W proponent. The problem is that, politically, the City kicked the bucket down the road for 25 years. I have never said this issue does not need to be addressed, because it does. lt's obvious that there are problems, but what could have been built 25 years ago would have cost a lot less than what we have to pay now. I take offense to the fact that they're saying that Measure W cost an extra 58 m¡ll¡on. You guys have cost us more than that over the past 25 years by not doing your job. When we elect officials they are supposed to look after the city. lt's not a politicalthing where you kick the bucket down the road for 25 years and now you're breaking the backs of the citizens. You have elderly people with set incomes and people on federal programs, what do you expect them to do? The rates you tried to do before was a 25 percent, 25 percent, S percent and 8 percent. That's quite a lot different then 8,8,8. There is no doubt in my mind that th¡s needs to be done, the question is, "are you going to do it the right way?" Comment: lt just seems to me that we are being told right now that we have to do this, We're being forced into this by the state. Have the attorneys looked into the fact that since this is state mandated, there should be funds available for it? Response, Mike Lima, City of Fresno Director of Finance: Right now, the state has a law on the books about unfunded mandates. When they tell a government they have to do something there is a law where they can be reimbursed forthat. Unfortunately, the state has balanced its budget by cutting those funds for governments to tap into. Comment: For recharging the groundwater, l've heard that some soils are not like sponges and if you put water in, the water will not be soaked up. ls that true? On the Southeast Surface WaterTreatment Facility, I was told that even if there were no new homes built we would still need that plant. lf we do build it, how many new homes could it serve in that area? Response, Gary Serrato, Fresno lrrigation D¡str¡ct: Soils on the east side don't do very well because there is a lot of clay. On the west side you have the soil profile and types that help with groundwater recha rge. Response, Tommy Esqueda, City of Fresno Public Utilities Director: Part of our strategy is looking at a plant that does 56 million gallons per day (mgd). An 80 mgd facility is what we are really going to need to meet state regulations. We would open the facility at 60 mgd and then come back and re-rate it for 80 mgd to get to the equilibrium that is required by law. Comment: This is the fourth water reliability community forum I have attended. I am in favor of water infrastructure improvements, I agree with Tommy's recommendations, but I don't think he goes far enough. ln all of these meetings there has not been a discussion regarding a temporary halt in allowing developers to build single family homes. I believe this should be part of the equation in addressing and solving our water shortage problems. ln my view it is an oxymoron for our city and council members to on one hand put restrictions on residential homeowners on lawns and plants to the point that lawns and plants go brown and die, and on the other hand to allow our water shortage problems to be exacerbated by allowing developers to continue building tracts of homes. lf we go forward with a water infrastructure program, it needs to be tied in with a moratorium on residential developers. Comment: Let me correct the City engineer (referring to Mr. Serrato) on soils. There are many areas on the east side of the valley where, passed the hardpan, there is good permeability both vertically and laterally. Historically, when Woodward Park was built, they dug some ponds too deep and broke through the hardpan and the water just drained down. There are areas of problems, but there are areas Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. L0, 2014 3 where you can break through the hardpan, The City's dependence on growth to underwrite part of the paying for the surface water treatment plant and other infrastructure including maintenance. Nowhere does unconstrained growth pose more risk than to our finite water supply. Water from California's rivers is already over allocated; let's not do the same in Fresno. Before proceeding, the City must construct a water budget with a rational per capita rate. We need to consider a lower per capita price. We need to have developers provide evidence of water for 20 years before they can build new homes. The City would have done a lot better if they had a video about the water history of Fresno and why politicians didn't want water meters and new water infrastructure. Spend less time on constructing citizens panels, we have plenty of professors thatthe city could use. Credibility, the city needs to be transparent, the staff does well but the councilmembers do not. Question: I would love to go back to L963 when Fresno only had 60,000 people but that's not going to happen. The land that the developers are developing was agricultural land. You're not going to tell me that it d¡dn't take just about the same amount of water as the residents are taking. Has this plan already been approved, or do the citizens get to vote? Response, Tommy Esqueda, City of Fresno Public Utilities Director: This issue would be a Proposition 218 process, which includes a protest ballot. We will mail a public notice to each house and renter, There will be a ballot card asking if you do not agree with moving fonruard, and there will be an envelope for you to mail back. There will also be a public hearing where the City Council can receive input from the community. ln the Sustainable Groundwater Management Act, there is a provision that if we don't comply, a water sustainability agency will be created (the state will step in and be that agency). They will have enforcement powers and fee generating powers such as taxing. They will find a way to make us comply. They would also have permitting authority to stop groundwater pumping. Question: What is the existing debt as far as the water is concerned? Do the proposed fees also include the standby fee? Response, Tommy Esqueda, City of Fresno Public Utilities Director: The 552.33 fee includes everything, which would be your water cost including commodity charge and usage charge. ln terms of existing debt, we have an outstanding bond for about 52 million, an outstanding loan from the state forthe meter project for about S50 m¡ll¡on, and another bond for S+0 m¡ll¡on. Response, Henry Mclaughlin, City of Fresno Water Division: For the 2010 bonds, we sold about S155 million worth of bonds and the debt service on that annually is about $t2 m¡ll¡on a year. The S54 million state loan is a no-interest loan. The total annual debt service right now is close to Sfe million. Comment: Sometimes we are our own worst enemy. I remember that we had quite a fuss over water meters until they were finally adopted. ln retrospect, it probably would have been better to put them in because the meters make people more conscious of how much water they are using and how much it costs. Do all of the costs come out of what we are paying for our water bill? ls there a split way of paying with part of it coming from usage fees and some of it based on the valuation of our properties? That way, people have to have a certain amount of water to function and you do have some way of controlling water usage. lt would equalize how much people pay if the rate was related to property value. The people that have more expensive houses would pay more because they would be less impacted. Response, Tom Pavletic, Municipal Finance Services: For the past decade we have been developing the water rates based on the expenditure plan. Our method is to use industry standard methodology and our knowledge of the constitutional requirements Tommy mentioned earlier. Using property values to Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. 10, 2014 4 allocate a portion of costs would be in direct conflict with the California Constitution that requires rates and benefits be linked through the rate structure. So if you actively tried to shift costs to a demographic based on their property values, it could be challenged in court. Comment: Here are some suggestions on the payment program. We should charge people by square footage and income. So if you are disabled, on Supplemental Security lncome or retired, you should be paying a rate according to what you are making. lf you are living on a gigantic, 10,000 acre piece of property you should be paying a little more. lf we're going to have more building in Fresno, they should put 10 to 20 percent of what they make ¡nto our water system. Also, when we build these two treatment plants we should open them up to education and school kids so they can learn about water and where it comes from. We have corporations that think because they're paying more money they can get away with things like watering on Fridays but they're not supposed to. We need to talk to Home Depot and Lowes to sell plants that are for Fresno and for our soil zones. Comment: I was on the Utility Advisory Committee and we presented a report to the City Council in 20LL where we recommended that these projects go forward and the costs would have been a lot less and the rates lower. When we presented the report to the City Council, it was totally ignored because they were interested in privatizing commercial solid waste. We had a group of people that were willing to go out and promote this. At Orchard Supply and Hardware, a lady mentioned that you are making it out to be worse than it actually is, but I said they're making it seem better than it actually is. This should have been done 25 years ago. I am willing to pay what is costs, because we need to take care of this water problem. Comment: My concern is with urban sprawl. l've heard that even if we don't grow we still need new infrastructure. lf that is the case, there should be a moratorium on new development because apparently we are not sizing the new system to include new development. Response: The City would build it to go to 56 to 60 mgd but it could be re-rated to 80 mgd. The City would not have to ask for it to be re-rated. Follow-up Comment: Water is a finite resource. We should not have new development. A way to limit development is with higher development fees. Tommy says the state is going to require us to fill the hole under us but that's not true. We really need to emphasize conservation measures. lt appears to me that the City had already made its decision to not do tiered rates before the first community forum, and the plan we are getting is something they have already worked out before the sessions even begun. Response, Tommy Esqueda, City of Fresno Public Utilities Director: I agree that we should strongly consider implementing tiered rates here. What we don't have is enough data and statistics. One year is an event, two years is a coincidence, and three years is a trend. We don't have three years of data. We determined not to do tiered rates about two or three weeks ago when we looked at the data. There just wasn't enough data for us to determine tiered rates. Comment: I was at a Stanford alumni retreat two weeks ago and all anyone could talk about was climate change. A panelist asked if we should all pay substantial costs for water, and the climate change innovation director said it is not a good idea because we have to look at equity issues. Pricing water at a level where the poor people can't get the water they need is something we absolutely cannot do as a soc¡ety. The plan in Fresno is to add 250,000 people by 2035, and that is just outrageous. I send all these emails to the officials in Fresno and the people in Stanford, you've got a bad name up there already and Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. L0, 20L4 5 it's going to get worse. lnstead of building, here are six points you can do: limit populat¡on growth; cut back on two hours a week on landscaping; enter into a water budget with Clovis, industry and agriculture; reduce leaking water mains; double the northeast plant and cancel the southeast plant; and build additional 400 acres of ponding basins to permit the recharge of another 60,000 acre feet of water. We don't need the southeast plant. That plant is to enable growth and we ought to put a halt to ¡t. l'm telling everyone at Stanford, and they're a big, huge power up there. Question: I have attended many forums and it seems like we're missing the white elephant in the room. My concern is the actual amount allocated for new development. l've spoken with staff and I commend them for their work. We know what our rates are going to do but there is no number for new development. We need to see that. When will it be presented? Response, Brock Buche, City of Fresno Water Division: As Tommy pointed out early on, this is to fix the problem that exists right now. We have been pumping groundwater from L964 to 20L4, and the sizing of the Southeast Surface WaterTreatment Facility ¡sto meetthe existing problems. As development continues, the City will have to buy a capacity with the expansion of the plant or some other facilities. It's not just about development. There is a very fair and equitable approach to this, and right now we're just trying to address the existing problem. Response, Tommy Esqueda, City of Fresno Public Utilities Director: The growth in the City in the last seven years has been about.86 percent. The developer contribution to the annual water budget has been 2 percent. Growth has been less than the developers are paying. Question: These comments come from my father who retired 30 years ago from the City of Fresno as a senior economist. The 25 year number is actually 27 years. You have a S+OO million estimate that was prepared by a consultant. This consultant has had a disastrous outcome in another project so what is the confidence level that this won't happen again here in Fresno? lf our number is 5400 million, what is our confidence level? How do we ensure that our number is our number? Response, Tommy Esqueda, City of Fresno Public Utilities Director: The confidence level I have is to get us even and get us to comply. State agencies will always want to do more but we will always want to do less. The S¿OO m¡ll¡on is where we need to be. The wild card is working with the state. Comment: One of the things I discovered after moving to Fresno was how affordable it is to live here. All these people keep talking about no growth, I don't know where they're burying their heads but it's not in any real world. ljust read somewhere that ¡n San Francisco, average rent is $3,000 a month. I doubt anyone in Fresno could afford that. One of the things that happens when government jumps in and tries to regulate a market is prices go up quickly. ln the Bay Area, there are people that are very happy to rent out their living room because that's the only place some people can afford. Every time you limit growth the rent will go through the roof. One thing I saw tonight was the difference between the plans is a dollar or two a month, that's not that much. One of the things talked about was expanding the Northeast Surface Water Treatment Facility. That needs to happen because when it was built we were saving money. Saving money can be one of the most expensive things you do. Trying to make it bigger costs more money and delaying costs more money. We need the water, you can't just keep digging a deeper hole without having to pay for it. Unfortunately the city council didn't do what they should have done so now we have to pay for it. We must have that water. We just have to b¡te the bullet and do ¡t. Question: The rates that you posted up there, are all those public municipalities? Are all of those public? Response: Yes, they are all public. Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. 10, 2014 6 Question: The small plant on Armstrong and Dakota was completed two years ago and has been non- operational, but it has a capacity of four to eight mgd. Also, the northeast plant has a capacity of 30 mgd but l've been told it has a capacity for 60 mgd. Do we really need a new plant? Response, Tommy Esqueda, City of Fresno Public Utilities Director: lf we don't build anything to meet the state regulations, the City will need to stop pumping. We will also need to shut down wells because of contamination. We need to replace that well water with mountain water. Response, Brock Buche, City of Fresno Water Division: The Northeast Surface Water Treatment Facility can only produce 30 mgd of water. Pretreatment basins are hydraulically restricted to 30 mgd. When we do expand, we need new pipes to carry the water. Question: A few months ago, there was an article in the Fresno Bee about how Clovis is not too worried about their water s¡tuation because they have a reserve. What did they do right and is there something we can learn from them to help our situation? Response, Tommy Esqueda, City of Fresno Public Utilities Director: Clovis has a population of L00,000 people and a 22 mgd treatment facility. They have one fifth of our population and a facility that is only a little smaller than ours. Question: We're looking at 56 mgd and hopefully recert¡fying to 80 mgd based on some reasonable growth projections. How long would that last us? Response, Tommy Esqueda, City of Fresno Public Ut¡l¡t¡es Director: The way we are forecasting the curve is w¡th a 1.9 percent growth rate. As long as we do not have another drought or more contamination, this Southeast Surface Water Treatment Facility should suffice. Question: Has the Southeast Surface Water Treatment Facility been designed yet? Response, Tommy Esqueda, City of Fresno Director of Public Utilities: Our engineer started to design an 80 mgd plant in June, but then the rate issues happened. Now it's looking like the design would be completed in April or May 2015. Question: l'm getting lost in the numbers, I thought the Kings River plant that was L20 million acre feet? So why is there a plant being built for 80 mgd? Comment: My issue is I don't see the importance of conservation included in all the possibilities, including grey water systems and replacement turf. We have to conserve our water, not get more. The facilitator then began a discussion amongst the invited expert panelists. Question: What happens if a utility doesn't comply? Comment, Kassy D. Chauhan, California State Water Resources Control Board: Essentially, every utility has an opportun¡ty to get into compliance. Once they are not into compliance and that determination is made, they are issued a compliance order. This has a directive that they notify customers that they're not meeting a drinking standard. They provide a plan and time schedule on how they will get into compliance and typically the compliance period is about three years. They are under obligation to get the system or source back into compliance within three years. Specifically, this would be applicable to The L,2,3, TCP MCL. Tommy mentioned this and that it would probably happen within the next year and it will allow for initial monitoring. After that, compliance determinations are made. Then they will have Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. 10, 2014 7 to demonstrate to the state the time and methods of getting that compliance back into shape. This will heavily impact the City to meet demands in southeast Fresno. This concerns the Department of Drinking Water. We have many small utilities that are facing challenges because of the drought. We are extremely concerned that the City of Fresno will run out of water, not have enough water to meet demands or will have to provide notice to everyone in the City of Fresno that the water that is being provided, that you're paying for doesn't meet the MCLs. Comment, Brock Buche, City of Fresno Water Division: Right now, we have really capitalized on conservation. We have invested SZ5 m¡ll¡on to install meters and with that we reduced consumption in the c¡ty 18 to 20 percent with that we have already made a huge investment in conservation. Moving forward we are looking at in home use and landscape usage. We have already invested a huge amount for conservation and moving forward we will continue to focus on conservation. Comment, Martin Mclntyre, San Luis Water D¡str¡ct: lt is impossible to conserve our way out of the imbalanced water budget. lt just cannot be done. Fortunately, and this is a unique circumstance, the City of Fresno has an adequate water supply to meet all of our needs to correct the groundwater overdraft to compensate forthese extraordinary regulations that are going to be coming out soon. What we lack is the infrastructure to put that water supply into use. There are communities all over the state that envy the position the City of Fresno is in and they can't possibly imagine why we wouldn't be bringing these water resources into play. Comment, Brock Buche, City of Fresno Water Division: We're talking about bringing surface water into use. lt would have been ideal to have a surface water treatment plant in place so that the water that was being delivered would be serving homes. We need to build this so that we can capitalize on the water that is available to us, otherwise it is a lost resource. We have a water budget, which was the first thing we did as we pulled together this plan. We looked at how much groundwater we can sustainably pull and use to serve the customers. We also looked at recycled water, we looked at what it's going to take for the next 50 years for water supplies in this city and we developed a very detailed plan. We need to start building this infrastructure, we have kicked the can down the road for far too long. What we are proposed is the true up to start taking advantage of the water supplies. Comment, Mike Lima, City of Fresno Director of Finance: We can make rates go up more slowly; however, a big part of this project is bond money. The banks that loan the money want a revenue stream to show that the bond will be paid back. lf they are told that they will not see their money back until six to L0 years from now, they will not loan us the money in the first place. So five years is about as far out as any bank will accept in order to issue the bonds and raise the capital. Comment, Tom Pavletic, Municipal Finance Services: Clients can adjust their annual expenditures, in addition to deciding how to fund a project they can decide when to fund a project. The two different programs reflect their attempt to attenuate the amount of cash they will need to implement those programs. Comment, Kassy D. Chauhan, California State Water Resources Control Board: Tommy mentioned that he has applied for state revolving funds to pay for a portion of the Southeast Surface Water Treatment Facility. We have done a preliminary investigation on the rates currently being charged and based on those current rates, whether the City could afford to take out a loan. The Division of Drinking Water Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. 10, 20L4 8 administers this state revolving funds, and based on the preliminary assessment of the four year rate increase, the city could afford up to S50 million that we would potentially fund. The 2O!2 rates, which we are paying now, are not adequate. That is a big concern because the funding is essentially a zero interest loan. lt doesn't get much better than that. Even the five year proposed increase is a concern because we were basing the funding on the four year tncrease. Comment, Brock Buche, City of Fresno Water Division: As we developed the 50-year Water Resources Management Plan, recharge continues to be a significant role and on an annual basis we would be increasing the number of recharge basins about L3 to L4 acres per year. So if we invest on a three to four year time basis we would build 40 to 60 acre basins. That continues to be a significant part of our strategy. Comment, Martin Mclntyre, San Luis Water D¡str¡ct: There is a lot of divided opinion on tiered water rates. A lot of community members believe that we all should pay by whatever we use, We can probably get a lot of information on challenges of tiered rates because the Proposition 2L8 process requires that the benefit reflect the cost. Comment, Tom Pavletic, Municipal F¡nance Services: lt's all about the data. The City had a summit during the series of forums, and one of the invited experts was a member of a taxpayer organization. That association initiated the Proposition 218 process, and they are the watchdogs to ensure that the regulations are followed. lt is safe to say that whatever the City would do with the tiered rates would get a very high level of scrutiny by the taxpayer organization. lt was imperative that the data we use be very sound so that when he presents it in a forum like this that everyone can be confident that it reflects the usage patterns. Comment, Kassy D. Chauhan, California State Water Resource Control Board: l'm very sympathet¡c to rates and how communities are asked to pay. We had a comparison of City of Fresno existing and proposed 5 year rates compared to very large utilities throughout the state. What I wish we had was a comparison of the citizens in Fresno have to pay compared to the extremely severe disadvantaged communities in Tulare County and Fresno County. A lot of those communities are paying SZO to SfOO a month for water. They are having to make that sacrifice to pay for water because they recognize that importance. Comment, Martin Mclntyre, San luis Water D¡str¡ct: lt is no accident that the proposed surface water treatment plant is scheduled to go in the southeast Fresno. That is where the groundwater unit is the weakest, where the groundwater contamination problems are the most severe, and where the groundwater recharge problems are the worst. lf that plant doesn't go in, at the minimum, southeast Fresno is going to be in serious water supply crisis and we will be getting routine notices on how the City of Fresno is not complying with drinking water regulations. From personal experience, notices that drinking water does not comply with state mandated drinking water standards is devastating to resale and property values in the area impacted. Comment, Brock Buche, City of Fresno Water Division: Looking at water demand use from 2004 when we brought on the northeast plant and averaging it out over a nine year period, we continued to over draw 40,000 acre feet annually. The sizing of this plant is so that we can stop that overdraft, allow the Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. 10, 2014 9 groundwater levels to come up to 2005 levels where we can keep our wells in operation and to meet the water demands of the City. Comment, Gary Serrato, Fresno lrrigation District: The state is very good at in¡tiating laws and requiring us to meet new standards. The Groundwater Sustainability Act, where we have to show that we will be sustainable, is not only for the city but for agriculture as well. They are very good at putting those laws into play, but they don't give you any money to do it. Whether its meeting sustainability or meeting water quality, they generally don't bring money along with it to help you get there. One thing I do want to leave you with is we have talked about the 25 years that this plan needed to be put into place, but I have found documents from the 1960s that say that we need to implement this plan, When you drive out to the west side and see a well that's standing about four feet above the ground, it's not that it went up, it's that the ground went down. Susta¡nability is something that we have to address and we have to do. Right now, that state is going to allow the local agencies to actually take control of that and put something into place. lf we don't do it, it falls back on the counties to do it, if the counties don't do it, the state will come in and being to regulate. This is a word that you don't want to hear and that is adjudication. Adjudication basically is when you have to go to court because you get sued. You end up spending millions of dollars to get back to where you knew you should have been to begin with. Meaning that we need to address the issues that the City is addressing tonight, Comment, Martin Mclntyre, San luis Water D¡str¡ct: I don't disagree that we should be balancing the water budget for our community and we should have been making greater investments historically. Sometimes communities get mislead. We would not have water meters or the City's 60,000 acre CVP contract if Sacramento had not said we're making a new law and you must have water meters. Today, virtually everyone believes we should pay for what we use. There was a reduction of water usage when meters were implemented. I never looked to Sacramento to save us but in this case they did, and we might have that same feeling about the Groundwater Sustainability Act eventually. Comment, Tom Pavletic, Municipal Finance Services: You may remember the prior rate structure was a SO.Of flat charge for an 80,000 square foot lot and then another SO.ZO for each additional square foot. Now that we have meters, they stimulate equity. Those who use less water have a meter measuring that, and they pay less. Comment, Martin Mclntyre, San Luis Water D¡str¡ct: One other point of confusion is that bill is a utility bill. ln that bill, there is a wastewater charge, a garbage charge and a water charge. I heard a woman at a recent forum ask if anyone ever has a S24 water bill. Well, yes. lt's the average typical water bill for a family residence. What people are misunderstanding is that other utility charges increase the overall bill. Comment, Kassy D. Chauhan, California State Water Resources Control Board: I have to redeem myself since l'm the state. Yes, I work for the state. We do make and enforce the regulations. The regulation of drinking water is gett¡ng more and more difficult with wh¡ch to comply. There are more and more regulated contam¡nants, and it's gett¡ng increasingly difficult for public utilit¡es to supply water that meets all the drinking standards. One unique advantage for Fresno is that they have a surface water supply and they can treat that raw water to any level that the regulations require. That comes at a cost, and I recognize that but it's not a higher cost than it is to provide well head treatment to remove 7,2,3, TCP. The Division of Drinking Water strongly supports the construct¡on of the Southeast Surface Water Treatment Facility, and we recognize the importance that the City develop a better water portfol¡o to Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. 10, 20L4 10 meet the demands of the customers. And we have strong concerns that the natural conveyance system to get that water from the Kings River to the Southeast Surface Water Treatment Facility site because there are a lot of sanitary hazards on the way. Originally, the plan was to make improvements to the canal to transport water to the treatment facility but it wasn't go¡ng to be enough so we had the City propose the construction of a pipeline. Comment, Tommy Esqueda, City of Fresno Public Utilities Director: Thank you very much. I got on the job on June 1.6 and a few days later a petition was started. Thank you all for coming out to the forums. Water is a big deal, and you're here because you know it's a big deal. Thank you for all the emails, calls and comments to help us together navigate this thing we want to do to get ourselves ready for the water needs of the community. Our meeting with the Council is scheduled for Nov. 20. Between now and then the Mayor will look this over and make a recommendation to the City Council. Recharge Fresno Water Reliability Community Forum Meeting Summary Nov. 10,2014 TT Page 1 of 7 From September 2014 through November 2014, the City of Fresno conducted four community forums to engage the public on all aspects of the City’s water future, including the status of our water supply, options for addressing our water challenges and financing the recommended project. Over 280 people participated in one or more of the forums, which were also televised and streamed live online. Detailed notes from each forum are available at www.RechargeFresno.com. In addition, the most common questions and answers that emerged from the public dialogue are summarized below. What is the source of the City’s water supply, and how much water do we use on an annual basis? The City has two major sources of water: groundwater and “surface water.” Groundwater literally refers to the water that exists below the surface in the City’s aquifer. Surface water refers to the water that flows from the Sierra Nevada mountain range, down the San Joaquin and Kings Rivers. The City of Fresno pays for access to 180,000 acre feet of surface water during a normal year. In 2013, the total demand for water in the City of Fresno was approximately 142,000 acre feet. The ratepayers were allocated just over 120,000 acre feet of surface water but due to a lack of storage and treatment capacity only used 65,000 acre feet (including 47,000 acre feet for recharge and approximately 18,000 acre‐feet for potable water supply through surface water treatment.) The balance of the demand was met by pumping almost 124,000 acre feet of water from below the ground. Why should we worry about water supply? We have plenty of groundwater. The City used to have a plentiful supply of groundwater. However, as the chart at the right indicates, groundwater monitoring over the last century clearly demonstrates that groundwater levels are declining at an alarming rate. In fact, over the last 80 years, the City’s groundwater has dropped more than 100 feet – the equivalent of all the water in Millerton Lake. While we can’t say for sure when that resource will run dry, the fact remains that we are using more groundwater each year than we are putting back and that pumping water from greater depths results in increased pumping cost and lower water quality . In other words, we are using the next generation’s water supply today. The state is currently considering adding even more water quality regulations that could potentially prevent the use of almost a quarter of our water supply by closing existing wells. The City of Fresno is committed to being a good steward of our financial and natural resources and is recommending implementation of the Recharge Fresno plan of proposed water supply and surface water treatment projects so that the next generation is not overly burdened with the cost of correcting this problem. Furthermore, in October 2014, Governor Brown signed a new State law that mandates correction of groundwater over drafting. Simply put, doing nothing about the City’s groundwater overdrafting problem is no longer an option. You have questions. We have answers. City of Fresno Groundwater Levels ‐ 1934 to 2013 Attachment 2 –Responses to Frequently Asked Questions Page 2 of 7 Why has the City waited so long to address Fresno’s groundwater issue? The City of Fresno staff has been regularly updating the City Council and the public on the status of the aquifer and has steadily worked to develop a long term plan to address the overdraft problem. Known originally as the “Urban Water Management Plan,” City staff first began to address this problem in 1986. The long term plan was then updated and approved by the City Council in 1993, 2008, and again in 2010. However, while the plan was regularly updated and approved by previous City Councils, the water rates were not adjusted as needed to actually implement the plan. There were understandable concerns about raising utility rates and, as a result, rates were not raised as they should have been in small and steady increments to build the needed infrastructure and avoid “rate shock.” Unfortunately, that delayed the construction of the needed infrastructure and added to the ultimate cost. Over the last four years, the City has conducted extensive community outreach to explain the groundwater challenge we face and invite public input on the solutions needed to address that challenge. Most recently, the City conducted the Recharge Fresno community forums where the public joined with City water staff, ratepayer advocates, and state and local water experts to discuss all aspects of the City’s water plan. The steady feedback from the public has been to move forward with the water plan and avoid making the problem even worse and costlier for future generations by delaying action yet again. Residents of the City of Fresno are being asked to approve a 5‐year water rate plan. How much will it cost, and what will it pay for? City staff are recommending a 5‐year, $429 million plan to the City Council that will pay for the following:  $6.4 m Intentional groundwater recharge  $98.4 m Raw water supply to bring water to treatment facilities  $186.4 m Surface water treatment to address groundwater overdraft and quality  $55.4 m Finished water distribution to Fresno residents and businesses  $82.5 m Rehabilitation and replacement of older water pipes and wells Has the City considered other water supply options – desalination, rainwater harvesting, more recharge, more conservation, grey water, and cloud seeding? The City has evaluated all options for increasing its water supply and found construction of the Southeast Surface Water Treatment Facility to be the most cost effective and efficient. Other sources of water supply, such as desalination, using grey water, rain barrels, and cloud seeding, among other ideas, have been raised but are not practical, or in most cases are not affordable, to address the dramatic water supply challenges we face in Fresno. If we conserve more, can we forego the need for a new surface water treatment facility? Conservation is an important part of balancing Fresno’s water supply, and the City has already significantly reduced water demand through conservation. In fact, Fresno’s average per capita water consumption has dropped over 25% in the past 6 years, from 320 gallons per day down to 240 gallons per day. But conservation alone cannot solve Fresno’s water challenges. Solutions require a combination of conservation, recharge and maximizing surface water supply. Page 3 of 7 Why can’t we meet our needs through more recharge basins? Recharge basins are part of the solution but cannot fully address Fresno’s water challenges. Acquiring the amount of land needed, securing the environmental permits, constructing recharge basins and installing treatment systems to deal with groundwater quality issues required to provide enough recharge to take the place of the Southeast Surface Water Treatment Plant would actually cost more than constructing the water treatment plant. Repair of aging infrastructure is important and necessary. Will funds be dedicated to repairing aging infrastructure? Funds for repair of aging wells, equipment and pipelines are included in the City of Fresno’s preliminary recommended capital plan. This is good news but it is important to note that those estimates do not fully fund the amount of repair and replacement (R&R) that is optimal for the City of Fresno. We will continue to work to find ways to accelerate this R&R while keeping customer costs and charges affordable. Future infrastructure plans will focus more heavily on repair and replacement but for now, our priority is on treatment plants so we can comply with the new state groundwater regulations. How will the City’s water plan affect my monthly water bill? A single family resident using 18 hundred cubic feet (HCF) per month is paying $24.49 per month for their water in Fresno. The 5‐year plan would increase that family’s rates steadily over 5 years to an average of $52.18 per month. Even at the increased level, the price of water in the City of Fresno is substantially lower than other major cities in California and on par or lower than other San Joaquin Valley cities. Your Preliminary Rate Plan shows a cost of $52.18 per month water charge for a sample customer. How was this determined? The current rate comparison ($24.49 current charge, versus 2019 charge $52.18) is based on a single family resident using 18 HCF of water per month. This is the figure used during the 2013 rate setting process so we wanted to make sure that we presented an “apple‐to‐apples” comparison of the old rate plan versus new our preliminary rate plan. A fee and rate schedule will be provided to all residents so that they can estimate their future water bills based on their family water usage (shown on their utility bill) and the Water Division always has representatives available to discuss rate calculations. For some current residents, their monthly water charge will decrease. It is important to note that 2/3 or more of the ratepayer’s bill each month is necessary to simply pay for existing operations and maintenance, as well as payment of prior debt. In other words, even if the City of Fresno did not have a substantial groundwater overdraft problem and even if the Southeast Surface Water Treatment Facility were not being proposed, rates over the next five years would still need to increase by over 70% to keep the lights on and the water flowing. Have City residents been underpaying for water? It is true that water rates for decades have not adequately covered the costs for ongoing expenses along with needed water system improvements. The City has recommended a new water treatment facility since 1996 but has not had sufficient funds to construct that facility or replace aging pipes and wells at a recommended pace. The City’s preliminary rate increase, spread over a period of five years, would keep rates affordable and below other similar‐sized cities, but at levels that better cover system needs and expenses. Page 4 of 7 Why are we paying for surface water and not using it? Thanks to excellent planning and foresight by previous Fresno leaders, we have retained and paid for entitlements to surface water for decades. Fresno is the envy of other communities in California who rely on a declining groundwater supply and have few, if any, surface water options. Our challenge is that we lack the infrastructure to access all of this water – Recharge Fresno proposes solutions to this challenge. The water capital costs are too high. Can we eliminate the capital projects in the water plan and reduce or eliminate the rate increases? Even if we made no system (“capital”) improvements, water rates are not sufficient to cover existing costs for providing safe, reliable water throughout the City. Approximately 2/3 of the proposed revenue is simply going to pay to maintain our existing system. This is a fact. In addition, the City of Fresno must take action to meet new State law regulating groundwater use. After extensive analysis, the best option to meet State law and Fresno’s water future is through surface water treatment. This comes at a cost but City professionals continue to work diligently to minimize costs while meeting the priority of providing safe, clean, reliable water to more than 500,000 residents. What is the City doing to ensure water affordability? Are funds available to subsidize low‐ income residents’ water bills? Providing safe, affordable water system has always been a City of Fresno priority. And, while rates in Fresno have actually been far below where they should be to cover costs and water system improvements, we understand that any charge can be a challenge for some customers. State law prohibits the use of ratepayer funds being collected to create a low‐income subsidy program. However, the City Council can choose to appropriate funding from the City’s General Fund to create such a program. How does the City ensure water users should pay their fair share? This question was frequently asked during the Recharge Fresno community forums. It is a requirement in the California Constitution that “the amount of a fee or charge … shall not exceed the proportional cost of the service attributable to the parcel.” The City’s preliminary rate proposal would include a fixed charge to recover ongoing costs of maintaining and operating the water system, along with a “user charge” based on amount of water used, so each customer would pay for only the water he or she uses, according to state law. Will the new surface water treatment facilities attract and prompt growth in Southeast Fresno? Construction of the Southeast Surface Water Treatment Facility is NOT to support growth. Its purpose is to deal with current groundwater issues and supply water to existing customers. If growth in Fresno halts today, we still face a significant water challenge. Groundwater is declining, and the cost to reach and treat groundwater will increase due to required depths for drilling and expected state water quality regulations. In addition, State law passed in 2014 requires that we and other California water users stop over drafting our groundwater supplies. In Fresno we ARE overdrafting. We have been overdrafting since the 1960’s and this has to stop. Page 5 of 7 Unlike many California communities, we are fortunate to have access to a surface water supply. The location of the proposed surface water treatment facility was selected a decade ago because of its proximity to the Kings River, which would be the source of the surface water coming to the treatment facility. Water from that facility would then be piped throughout the City – not just in the southeast. Does new development pay its fair share? There are a series of requirements and fees that apply to water supply and service for new development in the City of Fresno. In other words, new development is required to pay additional fees to cover the cost of hooking up to the City’s water system. Those fees are above and beyond the cost of monthly service the residents and tenants in the development also pay. To ensure the City is accurately assessing the cost of new development “hook ups” to the system, the City Manager has directed staff from the Department of Public Utilities to update its Water Capacity Fee Study. Did the City evaluate a tiered‐rate system to penalize large water users? Under a tiered‐rate system, customers would be divided into one or more categories of usage which usually depends on the level on consumption, and the higher the use, the higher the rates. Setting these rates requires detailed customer usage data to ensure rates are set appropriately. Since the City of Fresno has only had water meters in place throughout the City since 2013, we do not currently have enough precise water use data to accurately set these tiers though that will be analyzed as more water use data becomes available. Current water restrictions are causing trees and landscapes to die, which affects property values. How much longer will City ratepayers be required to restrict their water usage? As part of our Water Reliability Community Forums we have heard from members of our community who are concerned about their property values, their trees and their landscapes. City staff is recommending to the City Council that the Water Shortage Contingency Plan be modified to allow 1 day of watering during winter months (December 1 – March 1.) The current plan calls for eliminating all watering during winter months. What happens to funds from City surface water sales? Currently, the City has and pays for entitlements to surface water from the San Joaquin and Kings rivers. Because we lack the necessary pipelines and treatment facilities, we can’t use all that water so it is unavailable to our residents. For this reason, during years when “excess” surface water is available, the City can negotiate with other agencies in need to sell water and recoup some of our costs. Any funds received from the sale of water are required by state law to remain in the City’s water department and be used to benefit the ratepayers. The plan was developed too quickly and without input from the community. Actually, the development of the City’s recommendation to maximize use of surface water, stop reliance on groundwater, and replenish the groundwater supply has been in development since 1986. And since that time, the City has undertaken a number of efforts to raise community awareness about recommendations and needed investments, and to implement the plans. The Swearengin Administration began the community outreach and evaluation of this rate plan four years ago in 2010 by convening the Utility Advisory Commission, a volunteer group of Fresno ratepayers who conducted 14 public meetings and directly worked with City of Fresno staff to develop a new rate Page 6 of 7 plan. The Utility Advisory Commission made their recommendations to the City Council in 2011. The City spent another 2 years evaluating the plan and conducting community outreach. In 2013, the City Council approved a 4‐year plan but ultimately repealed that decision to allow for another six months of community outreach. The City Council agreed to go above and beyond the state law that governs notification of ratepayers on increases in their bill. When ballots are mailed to the public to ask for final approval of the rate plan, the envelope will be clearly marked with language that states “this includes important information about an increase to your water rates.” Inside there will be written notification describing proposed changes to the schedule of rates, fees, and charges assessed by the City of Fresno for public water service. Also within this Public Notice will be a protest ballot card that you can return to the City of Fresno in a self‐addressed, pre‐paid mail reply envelope. You only need to return the protest ballot card if you DO NOT want the Fresno City Council to enact the proposed changes to the schedule of rates, fees, and charges for public water service. Protest ballot cards received on, or before, February 5, 2015 will be counted. The City understands the need for an abundance of caution and community outreach before making decisions as significant as constructing the Southeast Surface Water Treatment Plan and was very pleased to extend the evaluation another six months and to conduct another four public meetings to ensure all aspects of the proposal were properly vetted. But time is not unlimited – we must enact appropriate rates and begin plans to stop our reliance on groundwater – before State law and water quality requirements limit our options and drive costs up even further. Why should we trust the City’s recommendations for water projects and rates? The City has highly qualified professionals who have worked tirelessly to develop thorough and affordable solutions to secure Fresno’s water future. But we know we can always do better in working with our community to build mutual understanding of needs and concerns and improve trust levels even more. The City’s Water Reliability Community Forums are the most recent steps in this effort, and the City is committed to continuing the conversation and making sure residents and customers have access to information and the ongoing ability to provide input and ideas. What is the impact of the state’s new Sustainable Groundwater Management Act on Fresno? The Sustainable Groundwater Management Act addresses over‐drafting, or overuse, of our groundwater supplies. As such action must be taken by the City of Fresno to address the over‐drafting conditions. The City of Fresno is well‐prepared to balance its aquifer with Recharge Fresno. If the City does not move forward to correct groundwater overdraft problems, the County or State agencies will be required to take action, most likely in a more significant manner and at greater cost to our customers. Will the Southeast Surface Water Treatment Facility have access to surface water during drought years when allocations are limited? We have and pay for access to surface water supplies. The City has surface water entitlements totaling 180,000 acre feet per year during a normal year. For perspective, the City’s water demand was approximately 142,000 acre‐feet in 2013. The amount of surface water available to Fresno fluctuates, but even in an extremely dry year like 2013, our total available allocation was 120,000 acre feet. That was lower than a normal year, but had we been able to access all of that water it would have met Page 7 of 7 almost all of our water demand. Because we don’t have the facilities to capture and treat the water, the City of Fresno missed the opportunity to use 55,000 acre feet of last year’s allocation. I’ve heard about a small City water plant that isn’t even running – is this true? There has been much misleading information shared about this small water treatment facility located at Armstrong and Dakota. The small facility, completed in November 2013, can treat approximately 4 million gallons of water a day. This facility also includes a 3 million gallon storage tank and booster pump station that has power and is fully functional. The water treatment facility is fully functional but is not currently operating while the Fresno Irrigation District (FID) conducts annual canal maintenance – with canals providing water to the facility. When FID resumes water deliveries, the plant will be placed into service to deliver water to the community. Why is the City adding a pipeline to serve the proposed surface water treatment facility? The original method to get surface water to the proposed Southeast Surface Water Treatment Plant was to use the Fresno Irrigation District canal system. However, based on thorough analysis and discussion with state regulatory agencies, it has been determined that a pipeline is a preferred option for many reasons, including the minimized environmental impact, improved water quality and reduced cost for treatment. State regulatory agencies have confirmed that this is their preferred option over the canal system. Where can I get more information? For Recharge Fresno information and for community forum information, go to www.RechargeFresno.com. For information about the City of Fresno Water Division and past water planning, visit www.Fresno.gov. ATTACHMENT 4 Schedule of Current and Proposed Schedule of Rates, Fees, and Charges for Public Water Service City of Fresno, CA effective dates >3/12/2015 7/1/2015 7/1/2016 7/1/2017 7/1/2018 Item Current FY15 FY16 FY17 FY18 FY19 Quantity Rates, $/HCF Single Family $0.610 $0.95 $1.19 $1.39 $1.67 $1.86 All Others $0.745 $0.95 $1.19 $1.39 $1.67 $1.86 Meter Charges, $/month Domestic ¾-inch $10.03 $8.50 $9.60 $11.00 $13.00 $14.10 1.0-inch $13.51 $11.20 $12.70 $14.60 $17.20 $18.70 1.5-inch $18.89 $13.10 $14.80 $17.00 $20.00 $21.80 2.0-inch $27.09 $22.20 $25.20 $28.90 $34.00 $37.00 3.0-inch $45.07 $33.20 $37.60 $43.20 $50.90 $55.30 4.0-inch $63.03 $50.00 $57.00 $65.00 $77.00 $83.00 6.0-inch $99.01 $96.00 $109.00 $125.00 $147.00 $160.00 8.0-inch $152.96 $443.00 $503.00 $577.00 $680.00 $739.00 10.0-inch $179.83 $699.00 $793.00 $911.00 $1,073.00 $1,166.00 12.0-inch na $919.00 $1,042.00 $1,197.00 $1,410.00 $1,533.00 Irrigation ¾-inch $10.03 $6.70 $7.60 $8.70 $10.30 $11.20 1.0-inch $13.51 $8.40 $9.50 $10.90 $12.90 $14.00 1.5-inch $18.89 $9.50 $10.80 $12.40 $14.60 $15.90 2.0-inch $27.09 $15.20 $17.20 $19.70 $23.20 $25.30 3.0-inch $45.07 $21.90 $24.80 $28.50 $33.60 $36.50 4.0-inch $63.03 $32.00 $37.00 $42.00 $50.00 $54.00 6.0-inch $99.01 $61.00 $69.00 $79.00 $93.00 $101.00 8.0-inch $152.96 $274.00 $311.00 $357.00 $421.00 $457.00 10.0-inch $179.83 $432.00 $490.00 $562.00 $662.00 $720.00 12.0-inch na $567.00 $643.00 $738.00 $869.00 $945.00 Private Fire Protection Service Charges, $/month Fire Hydrants $23.94 $28.90 $32.70 $37.50 $44.10 $47.80 Fire Service Connections 1.0-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 1.5-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 2.0-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 2.5-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 4.0-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 6.0-inch $35.94 $28.90 $32.70 $37.50 $44.10 $47.80 8.0-inch $47.92 $62.00 $70.00 $80.00 $94.00 $102.00 10.0-inch $59.90 $111.00 $126.00 $144.00 $169.00 $184.00 12.0-inch $71.88 $179.00 $203.00 $232.00 $273.00 $296.00 218_rates-429 Dear Property Owners and Ratepayers: The Water Division of the City of Fresno Department of Public Utilities (Water Division) owns, operates and maintains surface water treatment facilities, groundwater recharge facilities, groundwater pumping facilities, water storage reservoirs, and water distribution pipelines, valves, fire hydrants, and water meters. The Water Division purchases, treats, and delivers an average of 125 million gallons of water every day to approximately 130,000 accounts at single‑family residential, multi‑family residential, commercial, institutional, and industrial sites. The Water Division employs approximately 200 personnel and has an annual operating budget of approximately $75 million. In accordance with Article 13D, Section 6, of the California Constitution, the Fresno City Council is providing this written notification to owners of record and tenants of record at parcels that receive, and pay for, public water service provided by the Water Division. Specifically, this written notification describes proposed changes to the schedule of rates, fees, and charges assessed by the City of Fresno for public water service. The City of Fresno will conduct a public hearing on the proposed changes to the schedule of rates, fees, and charges for public water service on February 5, 2015. At the public hearing, the Fresno City Council will consider all protests against the proposed change to the schedule of rates, fees, and charges for public water service, and if on or before February 5, 2015, written protests against the proposed changes are presented by a majority of parcels that receive public water service, the Fresno City Council will not enact the proposed changes to the schedule of rates, fees, and charges for public water service. If less than a majority of parcels that receive public water service protest the proposed changes to the schedule of rates, fees, and charges for public water service, then the new schedule of rates, fees, and charges will become effective March 12, 2015. How do I Protest the Proposed Rate Increases? The Fresno City Council will receive public comments on the proposed changes to the schedule of rates, fees, and charges for public water service at a public hearing on February 5, 2015 at 5:00 pm. The hearing will be held at the Fresno City Council Chamber located at 2600 Fresno Street, Fresno, CA 93721. In accordance with Article 13D, Section 6, of the California Constitution, the City of Fresno Council has enclosed within this Public Notice a protest ballot card that you can return to the City in the self‑addressed, reply mail envelope. You only need to return the protest ballot card if you DO NOT want the Fresno City Council to enact the proposed changes to the schedule of rates, fees, and charges for public water service. Only protest ballot cards received on, or before, February 5, 2015 will be counted. NOTICE OF PUBLIC HEARING Proposed Changes to Schedule of Rates, Fees, and Charges for Public Water Service Date: February 5, 2015 Time: 5:00 p.m. Place: City of Fresno Council Chamber 2600 Fresno Street Fresno, CA 93721 Department of Public Utilities • 2600 Fresno Street • Fresno, CA 93721 Proposed Changes to Schedule of Rates, Fees, and Charges for Public Water Service The foll changes to the City of Fresno’s schedule of rates, fees, and charges are presented here: Schedule of Current and Proposed Schedule of Rates, Fees, and Charges for Public Water Service City of Fresno, CA effective dates >3/12/2015 7/1/2015 7/1/2016 7/1/2017 7/1/2018 Item Current FY15 FY16 FY17 FY18 FY19 Quantity Rates, $/HCF Single Family $0.610 $0.95 $1.19 $1.39 $1.67 $1.86 All Others $0.745 $0.95 $1.19 $1.39 $1.67 $1.86 Meter Charges, $/month Domestic ¾-inch $10.03 $8.50 $9.60 $11.00 $13.00 $14.10 1.0-inch $13.51 $11.20 $12.70 $14.60 $17.20 $18.70 1.5-inch $18.89 $13.10 $14.80 $17.00 $20.00 $21.80 2.0-inch $27.09 $22.20 $25.20 $28.90 $34.00 $37.00 3.0-inch $45.07 $33.20 $37.60 $43.20 $50.90 $55.30 4.0-inch $63.03 $50.00 $57.00 $65.00 $77.00 $83.00 6.0-inch $99.01 $96.00 $109.00 $125.00 $147.00 $160.00 8.0-inch $152.96 $443.00 $503.00 $577.00 $680.00 $739.00 10.0-inch $179.83 $699.00 $793.00 $911.00 $1,073.00 $1,166.00 12.0-inch na $919.00 $1,042.00 $1,197.00 $1,410.00 $1,533.00 Irrigation ¾-inch $10.03 $6.70 $7.60 $8.70 $10.30 $11.20 1.0-inch $13.51 $8.40 $9.50 $10.90 $12.90 $14.00 1.5-inch $18.89 $9.50 $10.80 $12.40 $14.60 $15.90 2.0-inch $27.09 $15.20 $17.20 $19.70 $23.20 $25.30 3.0-inch $45.07 $21.90 $24.80 $28.50 $33.60 $36.50 4.0-inch $63.03 $32.00 $37.00 $42.00 $50.00 $54.00 6.0-inch $99.01 $61.00 $69.00 $79.00 $93.00 $101.00 8.0-inch $152.96 $274.00 $311.00 $357.00 $421.00 $457.00 10.0-inch $179.83 $432.00 $490.00 $562.00 $662.00 $720.00 12.0-inch na $567.00 $643.00 $738.00 $869.00 $945.00 Private Fire Protection Service Charges, $/month Fire Hydrants $23.94 $28.90 $32.70 $37.50 $44.10 $47.80 Fire Service Connections 1.0-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 1.5-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 2.0-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 2.5-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 4.0-inch $23.94 $10.00 $11.30 $12.90 $15.20 $16.50 6.0-inch $35.94 $28.90 $32.70 $37.50 $44.10 $47.80 8.0-inch $47.92 $62.00 $70.00 $80.00 $94.00 $102.00 10.0-inch $59.90 $111.00 $126.00 $144.00 $169.00 $184.00 12.0-inch $71.88 $179.00 $203.00 $232.00 $273.00 $296.00 Reason for Proposed Changes The City of Fresno’s groundwater supply has been identified by the State of California as a high‑priority basin for corrective action to address significant groundwater overdraft conditions and groundwater contamination conditions. The City of Fresno has relied on groundwater as its primary water supply source for more than 100 years. The City of Fresno is located within Kings Subbasin of the Tulare Lake Hydrologic Region (Region), and the United State Geological Survey (USGS) reports that groundwater extractions in the region currently exceed the region’s groundwater recharge by approximately 1.5 million acre‑feet per year. For references purposes, Pine Flat Dam holds approximately 1 million acre feet of water; therefore annual groundwater losses in the region are equivalent to 1.5 Pine Flat Dams each year. This overdrafting condition (i.e. extractions exceeding recharge) has contributed significantly to declines in the groundwater level both in the region and in the City of Fresno. Within the City of Fresno, groundwater levels have declined more than 100 feet in the last 80 years. On September 14, 2014, the Governor of California signed into law three bills that are collectively referred to as the Sustainable Groundwater Management Act (the Act). The Act recognizes that excessive groundwater extraction can cause overdraft, failed wells, deteriorated water quality, environmental damage, and irreversible land subsidence – all of which require corrective action. Another issue facing the City is groundwater contamination. In 1999, 1,2,3‑trichloropropane (TCP) was added to the list of chemicals known to the State of California to cause cancer. The State is currently developing a maximum contaminant level (MCL) for TCP, which is expected to be released for public comment in late 2014 or early 2015. Based on water quality sampling conducted from 2011 through 2014, the presence of TCP has been identified in 80 of the City of Fresno’s groundwater wells at, and above, the public health goal of 0.0007 parts per billion (ppb). The total production of these 80 wells is approximately 138 million gallons per day (MGD). If the MCL is set at 0.005 ppb, the notification level, the City could lose use of 47 well with a production capacity of approximately 76 MGD of production capacity – about 30 percent of the City’s total groundwater production capacity. In response to the City’s current groundwater overdraft and contamination conditions, the Water Division has developed a capital investment plan that implements a corrective action plan developed by the City approximately 25 years ago to address declining groundwater levels and contamination. That plan was designed to use the City’s surface water entitlements at Pine Flat Dam and Friant Dam, which total 180,000 acre‑feet per year during a normal precipitation year, to allow the City’s groundwater supply to rest, recharge, and be restored. The current water demands in the City of Fresno total approximately 140,000 acre‑feet per year, therefore, the City’s existing entitlements are greater than the City’s current demands. The 25‑year old plan included raw water pipelines to deliver mountain water to the City; treatment facilities to prepare the water for use in the community; and finished water distribution facilities to The capital investment plan includes the following categories of projects:  Intentional Groundwater Recharge Facilities = $6.4 million  Raw Water Supply Facilities = $98.4 million  Surface Water Treatment Facilities = $186.4 million  Finished Water Distribution Facilities = $55.4 million  Pipeline and Well Rehabilitation and Replacement = $82.5 million Department of Public Utilities 2600 Fresno Street Fresno, CA 93721 deliver the mountain water to the front steps of the community’s homes, businesses, churches, schools, parks, and restaurants. The proposed rate plan includes approximately $1.1 million over the five‑year period for continued water conservation programs, and the proposed capital investment plan totals $429 million over same five‑year period. Basis for Calculating Proposed Changes The Department of Public Utilities retained an independent rate consultant to design a five‑year schedule of rates, fees, and charges to recover the Water Division’s five‑year forecast of capital, operations and maintenance expenditures. In developing the five‑year schedule of rates, fees, and charges, the City must comply with the California Constitution by establishing rates, fees, and charges that recover the actual costs associated with the level, quality, and quantity of service delivered to individual users of the system. The Water Division proposes to use consumption‑based user charges to recover the Water Division’s forecast of capital, operations and maintenance expenditures. Consumption‑based user charges are consistent with cost‑of‑service principles required by Article XIIID of the California Constitution, whereby the City can demonstrate that the amount of the fees charged for water service do not exceed the actual and proportional cost of the service attributable to the delivery of water. The findings and recommendations of the independent rate consultant are available for review by the public at www.rechargefresno.org. If you need more information about the proposed changes to the schedule of rates, fees, and charges for public water service you can visit www.rechargefresno.org or call 844‑373‑7664. fttcflvfD ¿rliI t'lülj 13 Pn ? TT Agenda ltem: lD#14-561 (5:00 P.M.) Date: ttl2OlL4 crTy cLERi{, FRESNo TFRESNO CITY COU NCI L C¡ty ofÉoearrs\l/z:fflEÐiEz¿¿ñ-- Supplemental lnformation Packet Agenda Related Items - lD#14-561 (5:00 P.M.) Supplemental Packet Date: November 2O,2OL4 Item(s) Receive report of findings and summary of discussions from the Recharge Fresno Community Forums and direct City staff to initiate the Proposition 218 hearing process for proposed changes to the schedule of rates, fees, and charges for public water service and setting the public hearing for February 5, 2015, at 5:00 p.m. Supplemental Information : Any agenda related public documents received and distributed to a majority of the City Council after the Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600 Fresno Street, during normal business hours (main location pursuant to the Brown Act, G.C. 54957.5(2t-. ln addition, Supplemental Packets are available for public review at the City Council meeting in the City Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City Clerk's website. Americans with Disabilities Act (ADA): The meeting room is accessible to the physically disabled, and the services of a translator can be made available. Requests for additional accommodations for the disabled, sign language interpreters, assistive listening devices, or translators should be made one week prior to the meeting. Please call City Clerk's Office at 62L-765O. Please keep the doonvays, aisles and wheelchair seating areas open and accessible. lf you need assistance with seating because of a disability, please see Securi RICEIVED ¿tlT þlrlÌj i9 Pn 7 TT LEAzuE of WO^ EN VOTERS of FRESNO clTY 0LER dog Lone * Fresno, CA * 93710 November 18,2014 Yv Spence, City Clerk City ofFresno 2600 Fresno Sheet 2133 sno, CA 93721 : November 20,2014 Agenda ID# 14-561 Recharge Fresno To: sno City Council League of Women Voters of Fresno (L\W Fresno) supports the proposed Recharge Fresno capital sûnent plan for water infrastn¡c¡¡¡s imFrovements that will be before the City Council on November 20, 2074.Wehave some conce the a¡r¡ount of fi.mding for water conservafion programs, as outlined in c ent#8 below. existing allocation of surface r from the San Joaquin and Kings rivers. This project including infrastructu¡e 1. The Novemb er 7,2O14 California Water Resor¡rces Control Boa¡d letter provides a detailed description of reasons why this project is needed if the City is to comply with State water quality and groundwater management laws and regulations. Of pæticular concern are impending water quality regulati 1,2,3 - TCP, which has been detected in 80 wells in Fresno, and meeting the requirements of 2014 Sustainable Groundwater Management AcÇ recently passed by the California legislature. 2- Diversifring the City's water sources will allow the City to more fully utilize its surface water allocation, thereby decreasing groundwater pumping to allow fs¡ ¡srhârge of Fresno's overdrafted groundwater- 3. We a¡e pleased Staffs efforts to reduce the cost ofthe Southeast Surface Water Treatment Plant by reducing its al capacity while designing the plant in such a way as to accommodate additional capacrty at a later e, ifneeded. We agree with continuing groundwater recharge efforts through the construction of additional "intentional" groundwater recharge basins. We support this $429 million caprtal investment plan because it contains $82.5 million for pipeline and well rehabilitation. We understand that the City has sizeable water infrastucture repair and replacement issues in Downtown Fresno and other older a¡eas of the Cþ. It is important to address repair/replacemenUrehabilitation issues with our aging inûastr¡rcttre to maintain system reliability and prevent costly failures. We support StafPs November 10 recommendation to conduct a Water Capacity Fee Study for new and expanded connections to the water system, so that information will be available to set fees and charges so that new development pays its full share of water infrastructure, operation, and maintenance costs. We are fully aware that it will be a challenge for the City to balance the cost of implementing the project with the need to keep water rates at a level that is acceptable to water users. [n the real world of finances in which the City must operate, it is ne,cessary to adopt rates, fees, and charges that provide the reliable revenue stream necessary to secure the bond funding and low cost loans needed to carry out the project. In addition Io 5429 million for capital infrastn¡cture investrnents, the proposed rate plan contains approximately $l.l million dollars over the five-year period of the rate plan for continued water conservation programs. These programs are a crucial component of this water plan as they enable residents, especially those with low or fixed incomes, to have better control over the amount of water they use, as well as, the total amount of their water bill. It seems that conservation prograrns are underfunded compared to capital investments unless the City is reasonably certain that it wilt be able to obtain a substantial amount of grant, or other, funding for conservation prograrrs. If this firnding is uncerain, it would be prudent to make adjustments in the rate plan to allow for increased conservation program funding. The current average monthly water bill for residential users with a l-inch service is $24.49, a relatively low fee reflecting our community's reluctance over the years to make needed investments in oru water infrastuctn¡e. It is substantially lower than the rate for water service for most other cities in the San Joaquin Valley and throughout California. Under the proposed rate plan for capital invesünent and conseryation prograns, the average monthly water bill would rise over 5 years to approximately $52.18, still a bargain compared with other cities. Thank you for carefully considering our comments. 4. 5. 7. 8. 9. 1\,uwl Mary Savalf Vice President, Natural Resowces League of Women Voters of Fresno Cc: Yvonne Spence, Cþ Clerk, City of Fresno- Please distribute to City Council Thornas Esquedq Director, City of Fresno Department ofPublic Utilities November 20, 2014 Staff Report and Recommendations for Water Division Capital and Rate Plans Presentation Overview •City Council direction •Water supply challenges and opportunities update •Public participatory process •Objectives, considerations and recommendations for Capital and Rate Plans •Closing comments •Questions Conduct Public Participation Process •Identify ways to reduce rates –Reevaluate sizing of surface water treatment facilities –Reevaluate sizing and timing of other capital projects •Review alternative financing options •Review alternative rate design options •Develop 5-year rate plan versus previous 4-year rate plan City Council Direction •Groundwater overdrafting •Groundwater contamination •Aging infrastructure •Current and future drought resiliency Water Supply and Infrastructure Challenges 80-Year Decline This Time It’s Different •2014 Sustainable Groundwater Management Act •Pending TCP contamination regulations –TCP detected in 80 wells (138 mgd) –$170M-$300M to treat wells Fresno is in a Unique Position Water Supply Opportunities ACRE-FEETGROUNDWATER STORAGEAdditional Surface Water Surface Water Allocation 180,000 acre feet Surface Water Use -20,000 acre feet Intentional Recharge -50,000 acre feet Unused in Normal Years 110,000 acre feet Groundwater Storage Decline Additional Surface Water •Four Water Reliability Community Forums •Publicized broadly –advertising, email blasts, posted fliers, media interviews •Televised live and video online •Water Rate and Financing Summit •RechargeFresno.com •Recharge Fresno Hotline •Comments –forums, comment forms, online forms, hotline calls, emails and presentations Public Participatory Process “The City found a way to make the people’s voice … the center of attention.” Objectives, Considerations and Recommendations for Capital and Rate Plans Recommendation Objectives •Comply with laws and regulations –water quantity, water quality, and design of rates, fees, and charges •Implement surface water treatment –as has been recommended for the last 25 years to reduce groundwater pumping •Enhance water conservation –continue to work with community to reduce overall water demands •Continue rehabilitation and replacement of existing infrastructure –avoids expensive failures and maintains system reliability •Continue groundwater recharge –expedite the recovery of groundwater levels in combination with reduced pumping Alternative Solutions Considered Alternative Cost 54 mgd, re-rated to 80 mgd SESWTF $186M 60 mgd SESWTF + 20 mgd Future Expansion $207M $170M for 60 mgd + $37M for 20 mgd expansion 30 mgd NESWTF Expansion + Future 40-50 mgd SESWTF $213M $82M for 30 mgd @ NE + approx $131M for 40-50 mgd @ SE Recharge and 80 mgd Wellhead Treatment >$670M >$500M for recharge + $170-300M for TCP treatment Recommended Major Projects Exist Northeast SWTF 80 MGD Southeast SWTF Raw Water Pipeline Raw Water Pipeline Raw Water Pipeline Finished Water Pipelines Raw Water Pipeline Cost of Capital Projects Projects Original Plan ($ million) Intentional Groundwater Recharge $ 7.1 Raw Water Supply $ 30.0 Surface Water Treatment $ 196.6 Finished Water Distribution $ 49.6 Rehab/Replacement & Upgrades $ 126.2 Subtotal $ 409.5 Cost Escalation Example NE SWTF, 30 mgd 1990: ~$1.0/gallon 2004: ~$1.5/gallon 2014: ~$2.6/gallon Cost Escalation (15 -month delay)$ 8.6 Additional year of Rehab/Replacement $ 24.1 Total $ 442.2 Cost of Capital Projects Projects Original Plan ($ million) Intentional Groundwater Recharge $ 7.1 Raw Water Supply $ 30.0 Surface Water Treatment $ 196.6 Finished Water Distribution $ 49.6 Rehab/Replacement & Upgrades $ 126.2 Subtotal $ 409.5 Cost Escalation (15 -month delay)$ 8.6 Additional year of Rehab/Replacement $ 24.1 Total $ 442.2 $429.1M Capital Plan ($ million) $ 6.4 $ 98.4 $ 186.4 $ 55.4 $ 82.5 $ 429.1 N/A N/A $ 429.1 $24.49 $27.22 $31.56 $32.38 $33.58 $33.66 $1.08 $2.56 $7.24 $13.68 $18.52 $0 $10 $20 $30 $40 $50 FY 2015 FY 2016 FY 2017 FY 2018 FY 2019Monthly Water BillCurrent Avg Water Bill Capital Projects How Your Rates Will Be Invested FY 2015 FY 2016 FY 2017 FY 2018 FY 2019 O&M and Existing Debt $ 27.22 $ 31.56 $ 32.38 $33.58 $33.66 Rehab / Replacement $ 0.88 $ 1.82 $3.89 $ 5.62 $ 8.45 Groundwater Recharge $0.02 $ 0.18 $0.56 $ 0.66 $ 0.18 Surface Water Treatment Water Supply and Distrib $ 0.18 $ 0.56 $ 2.79 $7.40 $ 9.89 New Plan Total $ 28.30 $ 34.12 $ 39.62 $ 47.26 $ 52.18 Original Plan $ 33.28 $ 41.42 $ 44.70 $ 48.34 $ 52.26 Ongoing Operations and Maintenance *18 HCF water usage per month and 1 inch service Recommendations •Direct staff to initiate Proposition 218 Process for revised capital plan and rate plan –Adopt uniform rate for all customer classes –Defer consideration of tiered-rates for at least five years (need more usage data) –Revenue plan based on user charges and new development fees, and city will continue to pursue all grant opportunities –Financial plan based on cash, state low -interest loans, with balance funded by revenue bonds Proposed Schedule •Nov. 20, 2014 –Council action to authorize Proposition 218 •Dec. 22, 2014 –Mail Proposition 218 notifications to property owners and ratepayers •Feb. 5, 2015 –Proposition 218 public hearing and Council action •March 12, 2015 –New rates take affect assuming Council approval •Importance of landscaping to the beauty of the community and property values •Water affordability is important •New development and existing water users should each pay their fair share What We Heard •Why has the City waited so long to address our groundwater quality and quantity issues? •This water program will change the City www.RechargeFresno.com