2020-07-15 City Council Regular MEETING - Agenda PacketCity Council Chambers Menifee City Council
Via RingCentral (see below) Regular Meeting Agenda
Menifee, CA 92586
Wednesday, July 15, 2020
5:00 PM Closed Session
6:00 PM Regular Meeting
Bill Zimmerman, Mayor
Greg August, District 1
Matthew Liesemeyer, District 2 Armando G. Villa, City Manager
Lesa Sobek, District 3 Jeffrey T. Melching, City Attorney
Dean Deines, District 4 Sarah A. Manwaring, City Clerk
AGENDA
AS A RESULT OF THE COVID-19 VIRUS, AND RESULTING ORDERS AND DIRECTION FROM THE
PRESIDENT OF THE UNITED STATES, THE GOVERNOR OF THE STATE OF CALIFORNIA, AND
THE RIVERSIDE COUNTY PUBLIC HEALTH DEPARTMENT, AS WELL AS THE CITY OF MENIFEE
EMERGENCY DECLARATION, THE PUBLIC WILL NOT BE PERMITTED TO PHYSICALLY ATTEND
THE MENIFEE MEETING TO WHICH THIS AGENDA APPLIES. YOU MAY PARTICIPATE IN THE
MEETING BY:
VIDEO: https://meetings.ringcentral.com/j/1496375960
PHONE: (623) 404-9000, MEETING ID #1496375960
PUBLIC COMMENTS: TO SUBMIT PUBLIC COMMENTS EMAIL publiccomments@cityofmenifee.us
FOR MORE INFORMATION GO TO http://cityofmenifee.us/621/Virtual-City-Clerk-Services, OR
CONTACT THE CITY CLERK DEPARTMENT AT (951) 672-6777.
CLOSED SESSION (5:00 P.M.)
1. THREAT TO PUBLIC SERVICES OR FACILITIES
Government Code Paragraph (A) of Section 94957
2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Government Code Paragraph (1) of subdivision (d) of Section 54956.9
BTS Sun City LLC v City of Menifee, Lionel Martinez
Riverside County Superior Court Case No. RIC1905639
3. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Government Code Paragraph (1) of subdivision (d) of Section 54956.9
In Re BTS Sun City LLC
Riverside County Superior Court Case No. MCC2000437
4. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Government Code Paragraph (1) of subdivision (d) of Section 54956.9
In Re BTS Sun City LLC
Riverside County Superior Court Case No. MCC2000444
5. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Government Code Paragraph (1) of subdivision (d) of Section 54956.9
In Re BTS Sun City LLC
Riverside County Superior Court Case No. MCC2000445
Menifee Mayor and City Council
Regular Meeting Agenda
Wednesday, July 15, 2020
Page 2 of 5
REGULAR MEETING (6:00 P.M)
1. CALL TO ORDER
2. ROLL CALL
3. WORDS OF INSPIRATION
3.1. Pastor Ryan Sharp, Impact Church
4. PLEDGE OF ALLEGIANCE
5. PRESENTATIONS
5.1. Parks Make Life Better Month
6. AGENDA APPROVAL OR MODIFICATIONS
7. PUBLIC COMMENTS (NON-AGENDA ITEMS)
This is the time for members of the public to address the Council about items which are NOT listed on the agenda.
The Ralph M. Brown Act limits the Council’s ability to respond to comments on non-agendized matters at the time
such comments are made. Each speaker will be limited to three minutes on any single item. Please submit a
completed speaker card to the City Clerk.
8. COUNCILMEMBER UPDATES AND COMMENTS
9. APPROVAL OF MINUTES
10. CONSENT CALENDAR
(All matters on the Consent Calendar are to be approved in one motion unless a Councilmember requests a separate
action on a specific item on the Consent Calendar. If an item is removed from the Consent Calendar, it will be
discussed individually and acted upon separately.)
10.1. Waiver of Reading in Full of Any and all Ordinances Listed on this Agenda and Provide
that they be read by Title Only
10.2. Warrant Register
RECOMMENDED ACTION
Ratify and approve the Voucher Lists dated 6/19/2020 and 6/30/2020, the Payroll
Register/Other EFT’s dated 6/9/2020, 6/19/2020 and 6/26/2020 and the Void Check
Listings PE 6/30/2020 which have a total budgetary impact of $4,053,072.04.
10.3. Examination of the City's Sales, Transaction & Use Tax Records
RECOMMENDED ACTION
Adopt a Resolution authorizing the examination of the City’s sales and use tax and
transaction and use tax records.
10.4. Debt Issuance and Management Policy
Menifee Mayor and City Council
Regular Meeting Agenda
Wednesday, July 15, 2020
Page 3 of 5
RECOMMENDED ACTION
Adopt a Resolution approving the City of Menifee’s Debt Issuance and Management
Policy.
10.5. Menifee Crime Watch Donation
RECOMMENDED ACTION
1. Approve and authorize the appropriation and expenditure of a $10,000 donation
from the Menifee Crime Watch to the City of Menifee; and
2. Adopt a Resolution amending the Fiscal Year 2020/21 operating budget.
10.6. Menifee Police Department Start-Up Year Budget Carry-Overs to Fiscal Year 20/21
RECOMMENDED ACTION
Approve the attached budget amendment Resolutions authorizing the Menifee Police
Departments budget carryovers, as of June 30, 2020 for start-up year expenditures, to
fiscal year 2020/21.
10.7. FY2020/21 on Call Contract Services (Economic Development)
RECOMMENDED ACTION
Approve the Professional Services Agreements for On Call Services for the Economic
Development Department for Fiscal Year (FY) 2020-21.
10.8. Menifee Valley Chamber of Commerce MOU
RECOMMENDED ACTION
Approve a Resolution, updating the list of activities, information and training programs,
events, and promotional products in connection with the Menifee Valley Chamber of
Commerce.
10.9. Inland Empire Small Business Development Center MOU
RECOMMENDED ACTION
Approve a Memorandum of Understanding (MOU) Agreement between the City of
Menifee and the Inland Empire Small Business Development Center for Menifee small
business consulting services, and space of use at the Menifee City Hall.
10.10. Adoption of an Ordinance Approving the Junction Development Agreement No. 2017-
291
RECOMMENDED ACTION
Adopt an Ordinance approving The Junction Development Agreement No. 2017-291.
10.11. Reimbursement Agreement for the Transportation Uniform Mitigation Fee Program
Funds for the McCall/I-215 Interchange
RECOMMENDED ACTION
Execute agreement between City of Menifee and the Western Riverside Council of
Governments (WRCOG) to reimburse Transportation Uniform Mitigation Fee Program
(TUMF) funds for Environmental and Design of the McCall / I-215 Interchange Project.
Menifee Mayor and City Council
Regular Meeting Agenda
Wednesday, July 15, 2020
Page 4 of 5
ITEMS PULLED FROM CONSENT
11. PUBLIC HEARING ITEMS
11.1. Permanent Local Housing Allocation Program Funding
RECOMMENDED ACTION
Adopt a Resolution authorizing staff to submit an application for Permanent Local
Housing Allocation (PLHA) funds to be used as described in the staff report/plan for
down payment assistance.
11.2. Wheatfield Cell Tower Reconsideration - Continued to August 5, 2020
11.3. Community Facilities District No. 2020-1 of the City of Menifee (McCall Mesa) to Levy
Special Taxes Therein and to Authorize Bonded Indebtedness
RECOMMENDED ACTION
Open Public Hearing for the establishment and related actions for the City of Menifee
Community Facilities District No. 2020-1, as established by Resolution No. 20-891 for
July 15, 2020, continue Public Hearing to August 5, 2020, and direct the City Clerk to
mail and publish legally required notice for said date.
11.4. Community Facilities District No. 2020-2 of the City of Menifee (Del Oro) to Levy Special
Taxes Therein and to Authorize Bonded Indebtedness
RECOMMENDED ACTION
Open Public Hearing for the establishment and related actions for the City of Menifee
Community Facilities District No. 2020-2, as established by Resolution No. 20-889,
continue Public Hearing to August 5, 2020, and direct the City Clerk to mail and publish
legally required notice for said date.
12. DISCUSSION ITEMS
12.1. Measure DD Affirmation
RECOMMENDED ACTION
Adopt a Resolution to place an affirmation ballot measure on the general election
ballot for November 3, 2020 to affirm the 2016 voter approved passage of Measure
DD, and the Ordinance 2016-199, codified as chapter 3.26 of the Menifee Municipal
Code.
12.2. Code of Conduct Policy Continuation
RECOMMENDED ACTION
Review and approve amendments, and adopt the Council Code of Conduct Policy.
13. CITY ATTORNEY REPORTS
14. CITY MANAGER REPORTS
Menifee Mayor and City Council
Regular Meeting Agenda
Wednesday, July 15, 2020
Page 5 of 5
15. FUTURE AGENDA REQUESTS FROM COUNCIL MEMBERS
Discuss strategy to address phase-out of illegal uses (Liesemeyer, July 18, 2018)
Target Date: TBD
Discuss Outstanding Citizen of the Month Policy (Sobek, February 20, 2019)
Target Date: September 2020
Central Park Improvements/Connectivity to Shopping, Residential (Liesemeyer, August 7, 2019)
Target Date: TBD
Discuss Options to Assist with Absence of School Buses (Liesemeyer, August 21, 2019)
Target Date: TBD
Discuss Code Enforcement Action on Old Smart and Final Location (Liesemeyer, September 18, 2019)
Target Date: TBD
Discuss Veteran Street Name Program (Sobek, October 2, 2019)
Target Date: TBD
Presentation from MSJC on Expansion Project (Sobek, November 20, 2019)
Target Date: TBD
Workshop to discuss residential uses in EDC (Zimmerman, December 18, 2019)
Target Date: TBD
Off-Site Signage Options (Liesemeyer, January 15, 2020)
Target Date: TBD
WRCOG presentation on Community Choice Aggregation (Liesemeyer, February 5, 2020)
Target Date: TBD
Review and Revisions to Committee Resolutions (Liesemeyer, February 5, 2020)
Target Date: TBD
MOU with Neighboring Cities Regarding Grants (Liesemeyer, February 19, 2020)
Target Date: TBD
Post Pandemic Report and Update on New Technology Implementations (Deines, April 15, 2020)
Target Date: TBD
Discussion to Open DIF and Assess Park Allocations (Liesemeyer, June 17, 2020)
Target Date: TBD
16. ADJOURN
Decorum Policy Notes
You may submit comments on any agenda item by emailing requests
to publiccomments@cityofmenifee.us prior to the item being heard. The Council
anticipates and encourages public participation at its Council meeting, both on agenda
items and during the public comments period. While we encourage participation, we ask
there be a mutual respect for the proceedings.
Staff Reports
Materials related to an item on this agenda, including those submitted to the City Council
after distribution of the agenda packet, are available for public inspection by contacting
Sarah Manwaring, City Clerk, at (951) 672-6777 during normal business hours.
Compliance with the Americans with Disabilities Act
If you need special assistance to participate in this meeting, you should contact Sarah
Manwaring, City Clerk at (951) 672-6777. Notification 72 hours prior to the meeting will
enable the City to make reasonable arrangements to assure accessibility to this meeting.
CITY OF MENIFEE
SUBJECT: Warrant Register
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Ann-Marie Etienne, Financial Services Manager
REVIEWED BY: Rochelle Clayton, Deputy City Manager
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Ratify and approve the Voucher Lists dated 6/19/2020 and 6/30/2020, the Payroll
Register/Other EFT’s dated 6/9/2020, 6/19/2020 and 6/26/2020 and the Void Check Listings PE
6/30/2020 which have a total budgetary impact of $4,053,072.04.
DISCUSSION
The City of Menifee Municipal Code Chapter 3.16.050 requires that the City Council audit
payments of demands and directs the City Manager to issue checks. The attached Voucher List
and all corresponding invoices have been reviewed and approved for accuracy by the Financial
Services Manager and by the Deputy Finance Director. Voucher Lists dated 6/19/2020 and
6/30/2020, the Payroll Register/Other EFT’s dated 6/9/2020, 6/19/2020 and 6/26/2020 and the
Void Check Listings PE 6/30/2020 have a total budgetary impact of $4,053,072.04.
FISCAL IMPACT
As indicated above, Voucher Lists dated 6/19/2020 and 6/30/2020, the Payroll Register/Other
EFT’s dated 6/9/2020, 6/19/2020 and 6/26/2020 and the Void Check Listings PE 6/30/2020
have a total budgetary impact of $4,053,072.04, which is included in the 2019-2020 & 2020-
2021 Budgets.
ATTACHMENTS
1. Voucher Listing 6-30-2020
2. Voucher Listing 6-19-2020
3. Payroll Void Check Listing Jun''20
4. Payroll Register 7-15-2020
5. A-P Void Check Listing Jun''20
10.2
Packet Pg. 6
06/30/2020
Voucher List
City of Menifee
1
1:54:36PM
Page:vchlist
Bank code :uboc
Voucher Date Vendor Invoice PO #Description/Account Amount
45741 6/30/2020 01503 ETIENNE, ANN-MARIE CK REQ 6/26 BEGINNING CASH-MENIFEE PD CLANDESTINE FU 1,000.00
Total : 1,000.00
45742 6/30/2020 01503 ETIENNE, ANN-MARIE CK REQ 6/29 PETTY CASH REIMB PE 6/29/20 914.80
Total : 914.80
Bank total : 1,914.80 2 Vouchers for bank code :uboc
1,914.80Total vouchers :Vouchers in this report 2
1Page:
10.2.a
Packet Pg. 7 Attachment: Voucher Listing 6-30-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 8 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 9 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 10 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 11 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 12 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 13 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 14 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 15 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 16 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 17 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 18 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 19 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 20 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 21 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 22 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 23 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 24 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 25 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 26 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 27 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
10.2.b
Packet Pg. 28 Attachment: Voucher Listing 6-19-2020 (2585 : Warrant Register)
Check #Paid to Status Pay Period Dates Dir Dep
2185 pr GIEDROYCE, THOMAS V 02/29/20 - 03/13/20 0.00
0.00
Grand Total:0.00
Total:73.91
73.91
Bank Date Can/Vd Date Amount
UNION BANK 03/20/2020 06/04/2020 73.91
Payroll Void Check History 10.2.c
Packet Pg. 29 Attachment: Payroll Void Check Listing Jun''20 (2585 : Warrant Register)
Date Paid by:Payee Description Amount
6/19/2020 ACH City Payroll Payroll Period 6/6/2020 - 6/19/2020 4,043.80
6/26/2020 ACH City Payroll Payroll Period 6/6/2020 - 6/19/2020 621,513.02
6/26/2020 ACH ICMA Payroll Period 6/6/2020 - 6/19/2020 26,124.31
TOTAL PAYROLL:651,681.13$
Date Paid by:Payee Description Amount
6/9/2020 ACH CALPERS - Retirement Payroll Period 5/9/2020 - 5/22/2020 42,119.51
6/9/2020 ACH CALPERS - Retirement Payroll Period 5/9/2020 - 5/22/2020 59,618.67
TOTAL OTHER EFT'S:101,738.18$
TOTAL PAYMENTS:753,419.31$
Payroll Register, Taxes and Other EFT's/Wires
City of Menifee
July 15, 2020
10.2.d
Packet Pg. 30 Attachment: Payroll Register 7-15-2020 (2585 : Warrant Register)
Status
2 checks in this report Total Checks:66,617.12
66,617.12
45218 04/24/2020 00046 SOUTHERN CALIFORNIA EDISONV 06/04/2020 2-41-608-8631 4/10 04/10/2020 645.92
04/07/2020 65,971.20
Invoice Inv. Date Amount Paid Check Total
45217 04/24/2020 00046 SOUTHERN CALIFORNIA EDISONV 06/04/2020 2-31-766-9299 4/7
Check #Date Vendor Clear/Void Date
A/P Void Check Listing
10.2.e
Packet Pg. 31 Attachment: A-P Void Check Listing Jun''20 (2585 : Warrant Register)
CITY OF MENIFEE
SUBJECT: Examination of the City's Sales, Transaction & Use Tax
Records
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Wendy Preece, Deputy Finance Director
REVIEWED BY: Rochelle Clayton, Deputy City Manager
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Adopt a Resolution authorizing the examination of the City’s sales and use tax and transaction
and use tax records.
DISCUSSION
The State Board of Equalization requires the City to adopt by Resolution, designating authorized
representatives to examine the City’s sales and use tax and transaction and use tax records
that are generated and maintained by the Board. Occasionally, as positions and employees
change within the City staff, it becomes necessary to update this Resolution. The last
Resolution adopted for this purpose for the transaction and use tax was Resolution No.16-586
adopted on December 7th, 2016. The last Resolution adopted for this purpose for the sales and
use tax was Resolution No. 08-43 adopted on January 6, 2009. Both of these Resolutions are
attached for historical reference.
The proposed Resolution will authorize the City Manager, Assistant City Manager, Deputy City
Manager, Deputy Finance Director, other officers or employees so designated, and Hinderliter,
de Llamas (HdL) Company, the City’s independent sales tax consultant, to receive
correspondence from the Board and to receive sales and use tax and transaction and use tax
data from the board for analytic purposes.
FISCAL IMPACT
None.
ATTACHMENTS
1. Resolution - Authorizing the Examination of the City's Sales and Use Taxes and
Transactions and Use Taxes
10.3
Packet Pg. 32
City of Menifee Staff Report
Resolution Authorizing the Examination City's Sales, Transaction & Use Tax Records
July 15, 2020
Page 2 of 2
2. Resolution No. 16-586 Authorizing the Examination of the City's Transaction and Use
Tax Records
3. Resolution No. 08-43 Authorizing the Examination of Sales, Use and Transactions Tax
Records
10.3
Packet Pg. 33
RESOLUTION NO. 20-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE, CALIFORNIA
AUTHORIZING THE EXAMINATION OF THE CITY’S SALES AND USE TAX AND
TRANSACTION AND USE TAX RECORDS.
WHEREAS, pursuant to Ordinance No. 2008-04 and No. 2016-199 of the City of Menifee
(hereinafter called City) and Section 7270 of the Revenue and Taxation Code, the City entered
into a contract with the State Board of Equalization to perform all functions incident to the
administration and operation of the Sales and Use Tax and the Transaction and Use Tax
Ordinance; and,
WHEREAS, the City deems it desirable and necessary for authorized representatives of
the City to examine confidential sales and use tax and transactions and use tax records of the
State Board of Equalization pertaining to sales and use tax and transaction and use taxes
collected by the Board for the City pursuant to that contract; and,
WHEREAS, Section 7056 of the Revenues and Taxation Code sets forth certain
requirements and conditions for the disclosure of Board of Equalization records and establishes
criminal penalties for the unlawful disclosure of information contained in or derived from, the sales
and use tax and transaction and use tax records of the Board;
NOW, THEREFORE, the City Council of the City of Menifee resolves as follows:
SECTION 1. That the City Manager, Assistant City Manager, Deputy City Manager and
Deputy Finance Director, or other officer or employee of the City of Menifee (hereafter referred to
as City) designated in writing by either the City Manager or the Deputy City Manager to the State
Board of Equalization (hereafter referred to as Board) is hereby appointed to represent the City
with authority to examine sales and use tax and transaction and use tax records of the Board
pertaining to sales and use tax and transaction and use taxes collected for the City by the Board
pursuant to the contract between the City and the Board. The information obtained by
examination of Board records shall be used only for purposes related to the collection of the City’s
sales and use tax and transaction and use taxes by the Board pursuant to the contract.
SECTION 2. That the City Manager, Assistant City Manager, Deputy City Manager,
Deputy Finance Director or other officer or employee of the City designed in writing by the City
Manager or Deputy City Manager to the Board of Equalization is hereby appointed to represent
the City with authority to examine those sales and use tax and transaction and use tax records of
the Board for purposes related to the following governmental functions of the City:
a. Administrative
b. Budgeting & Forecasting
c. Economic Development
d. Monetary Oversight
e. Planning
The information obtained by examination of Board records shall be used only for those
governmental functions of the City listed above.
10.3.a
Packet Pg. 34 Attachment: Resolution - Authorizing the Examination of the City's Sales and Use Taxes and Transactions and Use Taxes [Revision 2] (2568 :
SECTION 3. That Hinderliter, de Llamas (HdL) Companies is hereby designated to
examine the sales and use tax and transaction and use tax records of the Board of Equalization
pertaining to sales and use tax and transaction and use taxes collected for the City by the Board.
The person or entity designated by this section meets all of the following conditions:
a. Has an existing contract with the City to examine those sales and use tax and
transaction and use tax records;
b. Is required by that contract to disclose information contained in, or derived from those
sales and use tax and transaction and use tax records only to the officer or employee
authorized under Section 1 (or Section 2) of this resolution to examine the information;
c. Is prohibited by that contract from performing consulting services for a retailer during
the term of that contract;
d. Is prohibited by that contract from retaining the information contained in, or derived
from those sales and use tax and transaction and use tax records after that contract
has expired.
BE IT FURTHER RESOLVED that the information obtained by examination of Board
records shall be used only for purposes related to the collection of City’s sales and use tax and
transaction and use taxes by the Board pursuant to the contracts between the City and Board.
PASSED, APPROVED AND ADOPTED this 15th day of June 2020.
____________________________
Bill Zimmerman, Mayor
Attest:
_______________________________
Sarah A. Manwaring, City Clerk
Approved as to form:
_______________________________
Jeffrey T. Melching, City Attorney
10.3.a
Packet Pg. 35 Attachment: Resolution - Authorizing the Examination of the City's Sales and Use Taxes and Transactions and Use Taxes [Revision 2] (2568 :
10.3.b
Packet Pg. 36 Attachment: Resolution No. 16-586 Authorizing the Examination of the City's Transaction and Use Tax Records (2568 : Resolution Authorizing
10.3.b
Packet Pg. 37 Attachment: Resolution No. 16-586 Authorizing the Examination of the City's Transaction and Use Tax Records (2568 : Resolution Authorizing
10.3.b
Packet Pg. 38 Attachment: Resolution No. 16-586 Authorizing the Examination of the City's Transaction and Use Tax Records (2568 : Resolution Authorizing
10.3.c
Packet Pg. 39 Attachment: Resolution No. 08-43 Authorizing the Examination of Sales, Use and Transactions Tax Records (2568 : Resolution Authorizing the
10.3.c
Packet Pg. 40 Attachment: Resolution No. 08-43 Authorizing the Examination of Sales, Use and Transactions Tax Records (2568 : Resolution Authorizing the
CITY OF MENIFEE
SUBJECT: Debt Issuance and Management Policy
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Wendy Preece, Deputy Finance Director
REVIEWED BY: Rochelle Clayton, Deputy City Manager
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Adopt a Resolution approving the City of Menifee’s Debt Issuance and Management Policy.
DISCUSSION
On September 6, 2011 the City of Menifee City Council adopted Resolution No. 11-233
approving Policy No. FN-09 Statement of Policies and Procedures for Special Assessment and
Community Facilities District Debt Financing Programs. This policy was then amended by
Resolution No. 14-394 on August 6, 2014.
On September 12, 2016, the Governor signed into law Senate Bill 1029 (SB1029), the California
Debt and Investment Advisory Commission: Accountability Reports. The intent of this bill was to
facilitate improved financial transparency and public accessibility to information regarding public
debt. Staff is recommending adopting the attached policy which is updated to conform to the
requirements of SB 1029.
SB1029 required that state and local agencies adopt comprehensive debt management policies
that reflect local, state and federal laws and regulations. In addition, it requires agencies to
adopt debt management policies at least 30 days prior to the issuance of any new debt,
beginning on or after January 21, 2017. The bill advises that public agency debt management
policies reflect the recommendations of the Government Finance Officers Association (GFOA).
Finally, the legislation requires all state and local debt issuance to be published in a single,
transparent online database for public access.
SB 1029 specifically requires that local debt management policies shall include five key
components. The recommendations set forth by the GFOA also address these components:
a) The purpose for which the debt proceeds may be used;
b) The types of debt that may be issued;
10.4
Packet Pg. 41
City of Menifee Staff Report
Resolution Approving the Debt Issuance and Management Policy
July 15, 2020
Page 2 of 2
c) The relationship of the debt to, and integration with, the issuer’s capital improvement
program or budget, if applicable;
d) Policy goals related to the issuer’s planning goals and objectives; and
e) The internal control procedures that the issuer has implemented, or will implement, to
ensure that the proceeds of the proposed debt issuance will be directed to the intended
use.
The proposed Debt Issuance and Management Policy complies with the requirements set forth
in SB 1029 and the State Debt and Investment Advisory Commission and aligns with GFOA
recommendations.
FISCAL IMPACT
None.
ATTACHMENTS
1. Debt Issuance and Management Policy
2. Resolution - Adopting the Debt Issuance and Management Policy
3. Resolution No. 11-233 Statement of Policies and Procedures for Special Assessment
and CFD Debt Financing Programs
4. Resolution No. 14-394 Addendum to It's Policies Related to Special Districts and CFDs
10.4
Packet Pg. 42
CITY OF MENIFEE
City Council Policy
Policy Number: CC-XX
Approving Authority:
City Council
Subject
DEBT ISSUANCE AND MANAGEMENT POLICY
Effective Date:
Last Modified:
Page 1 of 4
A. PURPOSE
The purpose of this Debt Issuance and Management Policy (this “Policy”) is to establish guidelines
and parameters for the effective governance, management and administration of debt and other
financing obligations issued by the City of Menifee and its related entities (such as City-formed
community facilities districts).
As used in this Policy, “City” shall mean the City of Menifee. As used in this Policy, “debt” shall
be interpreted broadly to mean bonds, notes, certificates of participation, financing leases or other
financing obligations, but the use of such term in this Policy shall be solely for convenience and
shall not be interpreted to characterize any such obligation as an indebtedness or debt within the
meaning of any statutory or constitutional debt limitation where the substance and terms of the
obligation fall within exceptions to such limitation. This Policy shall apply to all debt issued or sold
to third party lenders or investors and does not pertain to City internal interfund borrowings or any
employee benefit obligations.
B. BACKGROUND
The City is committed to fiscal sustainability by employing long-term financial planning efforts,
maintaining appropriate reserves levels and employing prudent practices in governance,
management, budget administration and financial reporting.
Debt levels and their related annual costs are important long-term obligations that must be
managed within available resources. A disciplined thoughtful approach to debt management
includes policies that provide guidelines for the City to manage their collective debt program in
line with those resources. Therefore, the objective of this policy is to provide written guidelines
and restrictions concerning the amount and type of debt and other financing obligations issued
by the City and its related entities and the ongoing management of the debt portfolio.
This Policy is intended to improve the quality of decisions, assist with the determination of the
structure of debt issuance, identify policy goals and demonstrate a commitment to long-term
financial planning, including a multi-year capital plan. Adherence to a Debt Issuance and
Management Policy signals to rating agencies and the capital markets that a government is well
managed and should meet its obligations in a timely manner.
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C. CONDITIONS AND PURPOSES OF DEBT ISSUANCE
1. Acceptable Conditions for the Use of Debt
The City believes that prudent amounts of debt can be an equitable and cost-
effective means of financing infrastructure, and capital asset and project needs of
the City. Debt will be considered to finance such projects if:
a) The project has been, or will be, included in the City’s capital improvement
plan or has otherwise been coordinated with the City’s planning goals and
objectives.
b) The project can be financed with debt not exceeding the term specified in
Section E.1 of this Policy, to assure that long-term debt is not issued to
finance projects with a short useful life.
c) It is the most cost-effective funding means available to the City, taking into
account cash flow needs and other funding alternatives.
d) It is fiscally prudent and meets the guidelines of this Policy. Any
consideration of debt financing shall consider financial alternatives,
including pay-as-you-go funding, proceeds derived from development or
redevelopment of existing land and capital assets owned by the City, and
use of existing or future cash reserves, or combinations thereof.
2. Acceptable Uses of Debt and Proceeds of Debt
The primary purpose of debt is to finance one of the following:
a) The City will consider long-term financing for the acquisition, substantial
refurbishment, replacement, or expansion of capital assets (including but
not limited to land improvements, infrastructure projects, and equipment)
for the following purposes:
i. Acquisition and or improvement of land, right-of-way or long-term
easements.
ii. Acquisition of a capital asset with a useful life of three or more
years.
iii. Construction or reconstruction of a facility.
iv. Although not the primary purpose of the financing effort, project
reimbursables that include project planning design, engineering
and other preconstruction efforts; project-associated furniture
fixtures and equipment; capitalized interest (prefunded interest),
original issue discount, underwriter’s discount, and other costs of
issuance.
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b) Refunding, refinancing or restructuring debt (including without limitation the
refinancing or advance funding of City pension obligations), subject to
refunding objectives and parameters discussed in Section G.
3. Short-Term Debt
a) In the event of temporary shortfalls in cash flow for City operation costs due
to timing of receipt of revenues and the lack of cash on hand to cover the
temporary deficit, the City may consider interim or cash flow financing, such
as anticipation notes. In compliance with applicable state law, any such
notes shall be payable either: (i) not later than the last day of the fiscal year
in which it is issued, or (ii) during the fiscal year succeeding the fiscal year
in which issued, but in no event later than 15 months after the date of issue,
and only if such note is payable only from revenue received or accrued
during the fiscal year in which it was issued.
b) Short-term debt may also be used to finance short-lived capital projects,
such as lease-purchase financing or equipment.
c) Prior to issuance of any short-term debt, a reliable revenue source shall be
identified for repayment of the debt.
4. Internal Control Procedures Concerning Use of Proceeds of Debt
One of the City’s priorities in the management of debt is to assure that the proceeds
of the debt will be directed to the intended use for which the debt has been issued.
In furtherance of this priority, the following procedures shall apply:
a) The Deputy Finance Director shall retain, for the applicable period specified
in Section H.4. of this Policy, a copy of each annual report filed with the
California Debt and Investment Advisory Commission (“CDIAC”) pursuant
to Section 8855(k) of the California Government Code concerning (1) debt
authorized during the applicable reporting period (whether issued or not),
(2) debt outstanding during the reporting period, and (3) the use during the
reporting period of proceeds of issued debt.
b) In connection with the preparation of each annual report to be filed with
CDIAC pursuant to Section 8855(k) of the California Government Code,
the Deputy Finance Director shall keep a record of the original intended
use for which the debt has been issued, and indicate whether the proceeds
spent during the applicable one-year reporting period for such annual
report comport with the intended use (at the time of original issuance or as
modified pursuant to the following sentence). If a change in intended use
has been authorized subsequent to the original issuance of the debt, the
Finance Department shall indicate in the record when the change in use
was authorized and whether the City Council, City Manager or another City
official has authorized the change in intended use. The Deputy Finance
Director or the Deputy Finance Director’s designee shall report apparent
deviations from the intended use in debt proceeds to the City Manager for
further discussion, and if the City Manager determines appropriate in
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consultation with legal counsel (which may be bond counsel, if applicable,
or the City Attorney), to the City Council.
c) If the debt has been issued to finance a capital project and the project
timeline or scope of project has changed in a way that all or a portion of the
debt proceeds cannot be expended on the original project, the Deputy
Finance Director shall consult with the City Manager and legal counsel
(which may be bond counsel, if applicable, or the City Attorney) as to
available alternatives for the expenditure of the remaining debt proceeds
(including prepayment of the debt).
D. TYPES OF FINANCING INSTRUMENTS; AFFORDABILITY AND PLANNING
POLICIES
The City recognizes that there are numerous types of financing structures and funding sources
available, each with specific benefits, risks and costs. All potential funding sources are reviewed
by management within the context of this Policy and the overall portfolio to ensure that any
financial product or structure is consistent with the City’s objectives. Regardless of what financing
structure(s) is utilized, due diligence review must be performed for each transaction, including the
quantification of potential risks and benefits and analysis of the impact on City creditworthiness
and debt affordability and capacity.
Prior to the issuance of debt or other financing obligations to finance a project, the City will
carefully consider the overall long-term affordability of the proposed debt issuance. The City shall
not assume more debt or other financing obligations without conducting an objective analysis of
the City’s ability to assume and support additional debt service payments. The City will consider
its long-term revenue and expenditure trends, the impact on operational flexibility and the overall
debt burden on the taxpayers. The evaluation process shall include a review of generally
accepted measures of affordability and will strive to achieve and or maintain debt levels consistent
with its current operating and capital needs.
1. General Fund-Supported Debt – General Fund Supported Debt generally include
Certificates of Participation (“COPs”) and Lease Revenue Bonds (“LRBs”) which
are lease obligations that are secured by a lease-back arrangement between the
City and another public entity. Typically, the City appropriates available General
Fund moneys to pay the lease payments to the other public entity and, in turn, the
public entity uses such lease payments received to pay debt service on the bonds
or Certificates of Participation.
General Fund Supported Debt may also include bonds issued to refund obligations
imposed by law, such as judgments (judgment obligation bonds (“JOBs”)) or
unfunded accrued actuarial liabilities for pension plans (pension obligation bonds
(“POBs”)).
These obligations do not constitute indebtedness under the state constitutional
debt limitation and, therefore, are not subject to voter approval.
Without limiting the foregoing, the City may also enter into operating leases and
lease purchase agreements on an as-needed basis without voter approval.
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Payments to be made under valid leases are payable only in the year in which use
and occupancy of the leased property is available, and lease payments may not
be accelerated as a default remedy. Lease financing requires the fair market rental
value of the leased property to be equal to or greater than the required debt service
or lease payments. The lessee (the City) is obligated to include in its Annual
Budget and appropriate the rental payments that are due and payable during each
fiscal year the lessee has use of the leased property.
The City should strive to maintain its net General Fund-backed annual debt service
at or less than 8% of available annually budgeted revenue. This ratio is defined
as the City’s annual debt service requirements on General Fund Supported Debt
(including, but not limited to, COPs, LRBs, JOBs, and POBs) compared to total
annual General Fund Revenues net of interfund transfers out.
2. Revenue Bonds – Long-term obligations payable solely from specific special fund
sources, in general, are not subject to a debt limitation. Examples of such long-
term obligations include those which are payable from a special fund consisting of
restricted revenues or user fees (e.g., enterprise revenues) and revenues derived
from the system of which the project being funded is a part.
In determining the affordability of proposed revenue bonds, the City will perform
an analysis comparing projected annual net revenues (exclusive of depreciation
which is a non-cash related expense) to estimated annual debt service. The City
should strive to maintain an annual coverage ratio of 110% (or such higher
coverage ratio included in the City’s existing financing documents), using historical
and/or projected net revenues to cover annual debt service for bonds. To the
extent necessary, the City shall undertake proceedings for a rate increase to cover
both operations and debt service costs, and create debt service reserve funds to
maintain the required coverage ratio.
3. Special Districts Financing – The City has formed and, if the City determines
appropriate, it may undertake proceedings to form additional, Community Facilities
Districts pursuant to the Mello-Roos Community Facilities District Act of 1982 or
assessment districts pursuant to the Improvement Act of 1911, the Municipal
Improvement Act of 1913, or other applicable law. The City will consider requests
for special district formation and debt issuance when such requests address a
public need or provide a public benefit. Each application will be considered on a
case by case basis, and the Finance Department may not recommend a financing
if it is determined that the financing could be detrimental to the debt position or the
best interests of the City.
4. General Obligation Bonds – Notwithstanding their name, General Obligation
Bonds are not general obligations of the City, but instead they are payable from
and secured by a dedicated, voter-approved property tax override rate (i.e., a
property tax in excess of the 1% basic ad valorem property tax rate which has
received the approving two-thirds vote of the City’s electorate). While the
dedicated revenue stream to repay the debt makes General Obligation Bonds an
attractive option, additional considerations for this financing mechanism include
the time and expense of an election, the possibility that the electorate will not
approve the ballot measure, and the legal bonding capacity limit of the assessed
value of all taxable property within the City. (At the time of the adoption of this
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Policy, the legal bonding capacity limit for a California general law city is 3.75% of
the assessed value of all taxable property within the City.).
5. Tax Increment Financing – Tax increment financing is a financing method
whereby a portion of ad valorem property taxes (commonly called the “tax
increment”) that are allocated to an entity, such as an enhanced infrastructure
financing district (“EIFD”), a community revitalization and investment authority
(“CRIA”) or an infrastructure and revitalization financing district (“IRFD”), and the
entity is permitted to incur debt payable from and secured by the tax increment
revenues. While tax increment debt for redevelopment agencies and Successor
Agencies is entitled to the benefits of Article XVI, Section 16, of the California
Constitution, no similar provision exists for EIFDs, CRIAs and IRFDs at the time of
adoption of this Policy. Therefore, when considering EIFD, CRIA or IRFD financing
or other types of tax increment financing which may be permitted by law in the
future, debt limit concerns should be analyzed with respect to the proposed
structure and taken into account in determining the practical viability of the
proposed financing.
6. Conduit Debt – Conduit financing provides for the issuance of securities by a
government agency to finance a project of a third party, such as a non-profit
organization or other private entity. The City may sponsor conduit financings for
those activities that have a general public purpose and are consistent with the
City’s overall service and policy objectives. Unless a compelling public policy
rationale exists, such conduit financings will not in any way pledge the City’s faith
and credit.
E. STRUCTURE OF DEBT
1. Term of Debt – In keeping with Internal Revenue Service regulations for tax-
exempt financing obligations, the weighted average maturity of the debt should not
exceed 120% of the weighted average useful life of the facilities or projects to be
financed, unless specific circumstances exist that would mitigate the extension of
time to repay the debt and it would not cause the City to violate any covenants to
maintain the tax-exempt status of such debt, if applicable.
2. Rapidity of Debt Payment; Level Payment – To the extent practical, bonds will
be amortized on a level repayment basis, and revenue bonds will be amortized on
a level repayment basis considering the forecasted available pledged revenues to
achieve the lowest rates possible. Bond repayments should not increase on an
annual basis in excess of 2% without a dedicated and supporting revenue funding
stream.
Accelerated repayment schedules reduce debt burden faster and reduce total
borrowing costs. The Deputy Finance Director will amortize debt through the most
financially advantageous debt structure and to the extent possible, match the City’s
projected cash flow to the anticipated debt service payments. “Backloading” of
debt service will be considered only when one or more of the following occur:
a) Natural disasters or extraordinary or unanticipated external factors make
payments on the debt in early years prohibitive.
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b) The benefits derived from the debt issuance can clearly be demonstrated
to be greater in the future than in the present.
c) Such structuring is beneficial to the City’s aggregate overall debt payment
schedule or achieves measurable interest savings.
d) Such structuring will allow debt service to more closely match projected
revenues, whether due to lower project revenues during the early years of
the project’s operation, inflation escalators in the enterprise user rates, or
other quantifiable reasons.
3. Serial Bonds, Term Bonds, and Capital Appreciation Bonds – For each
issuance, the City will select serial bonds or term bonds, or both. On the occasions
where circumstances warrant, Capital Appreciation Bonds (“CABs”) may be used.
The decision to use term bonds, serial bonds, or CABs is driven based on market
conditions. However, the use of CABs should be used as a last resort unless a
compelling financing need is presented and acceptable rates and terms can be
secured.
4. Reserve Funds – To the extent that the use of available City moneys to fund a
reserve fund provides an economic benefit that offsets the cost of financing the
reserve fund from bond proceeds (as determined by the Deputy Finance Director
in consultation with the City’s municipal advisor and, if applicable, the underwriter
for the bonds), the City may use legally permitted moneys to fund a reserve fund
(in cash or through the purchase of a debt service reserve surety bond or insurance
policy) for the proposed bonds, up to the maximum amount permitted by applicable
law or regulation. Typically, this amount is equal to the least of: (i) maximum
annual debt service on the bonds, (ii) 10% of the principal amount of the bonds (or
10% of the sale proceeds of the bonds, within the meaning of Section 148 of the
federal Internal Revenue Code), or (iii) 125% of average annual debt service on
the bonds.
F. USE OF ALTERNATIVE DEBT INSTRUMENTS
Alternative debt instruments and financing structures sometimes can provide a lower cost of
borrowing in the short run, but may involve greater medium-term or long-term risk. Due diligence
review must be performed for each transaction, including the quantification of potential risks and
benefits, analysis of the impact on City creditworthiness and debt affordability and capacity, and
an evaluation of the ability of the City to withstand the medium-term or long-term risk attendant to
alternative debt instruments, including the feasibility of exit strategies.
1. Variable Rate Debt
Variable rate debt affords the City the potential to achieve a lower cost debt
depending on market conditions. However, the City will seek to limit the use of
variable-rate debt due to the potential risks of such instruments.
a) Purpose
The City shall consider the use of variable rate debt for the purposes of:
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i. Reducing the costs of debt issues.
ii. Increasing flexibility for accelerating principal repayment and
amortization.
iii. Enhancing the management of assets and liabilities (matching
short-term “priced debt” with the City’s short-term investments).
b) Considerations and Limitations on Variable-Rate Debt
The City may consider the use of all alternative structures and modes of variable
rate debt to the extent permissible under State law and will make determinations
among different types of modes of variable rate debt based on cost, benefit, and
risk factors. The Deputy Finance Director shall consider the following factors in
considering whether to utilize variable rate debt:
i. With respect to General Fund supported debt, one of the following
two criteria should be met as determined by the Deputy Finance
Director in his or her discretion: 1) any variable rate debt should not
exceed 20% of total City General Fund supported debt; or 2) annual
debt service on any variable rate debt should not exceed 5% of the
annual General Fund Revenue.
ii. Any variable rate debt should be fully hedged by expected future
capital fund reserves or unrestricted General Fund reserve levels,
as applicable.
iii. Whether interest cost and market conditions (including the shape of
the yield curves and relative value considerations) are unfavorable
for issuing fixed rate debt.
iv. The likelihood of projected debt service savings when comparing
the cost of fixed rate bonds.
v. Costs, implementation and administration are quantified and
considered.
vi. Cost and availability of liquidity facilities (lines of credit necessary
for variable rate debt obligations and commercial paper in the event
that the bonds are not successfully remarketed) are quantified and
considered.
vii. Whether the ability to convert debt to another mode (daily, monthly,
fixed) or redeem at par at any time is permitted.
viii. Cost and availability of derivative products to hedge interest rate
risk.
ix. The findings of a thorough risk management assessment.
c) Risk Management
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Any issuance of variable rate debt shall require a rigorous risk assessment,
including, but not limited to factors discussed in this section. Variable rate debt
subjects the City to additional financial risks (relative to fixed rate bonds), including
interest rate risk, tax risk, and certain risks related to providing liquidity for certain
types of variable rate debt.
The City will properly manage the risks as follows:
i. Interest Rate Risk and Tax Risk – The risk that market interest
rates increase on variable-rate debt because of market conditions,
changes in taxation of municipal bond interest or reductions in tax
rates. Mitigation – Limit total variable rate exposure per the defined
limits, match the variable rate liabilities with short term assets,
and/or purchase appropriate derivative products to hedge against
the risk (see also Section F.2 below).
ii. Liquidity/Remarketing Risk – The risk that holders of variable rate
bonds exercise their “put” option, tender their bonds, and the bonds
cannot be remarketed requiring the bond liquidity facility provider to
repurchase the bonds. This will result in the City paying a higher
rate of interest to the facility provider and the potential rapid
amortization of the repurchased bonds. Mitigation - Limit total direct
variable-rate exposure. Seek liquidity facilities which allow for
longer (5-10 years) amortization of any draws on the facility.
Endeavor to secure credit support facilities that result in bond
ratings of the highest short-term ratings and long-term ratings not
lower than the second highest rating category (without taking into
account numerical or plus/minus sign modifiers). If the City’s bonds
are downgraded below these levels (or such other rating levels as
provided in the applicable financing documents) as a result of the
facility provider’s ratings, a replacement provider shall be sought.
iii. Liquidity/Rollover Risk – The risk that arises due to the shorter
term of most liquidity provider agreements (1-5 years) relative to the
longer-term amortization schedule of the City’s variable-rate bonds.
Liquidity and rollover risk includes the following risks: (1) the City
may incur higher renewal fees when renewal agreements are
negotiated, and (2) the liquidity bank market may constrict such that
it is difficult to secure third party liquidity at any interest rate.
Mitigation – Negotiate longer terms on provider contracts to
minimize the number of rollovers.
2. Derivatives
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The use of certain derivative products to hedge variable rate debt, such as interest
rate swaps, may be considered to the extent the City has such debt outstanding
or under consideration. The City will exercise extreme caution in the use of
derivative instruments for hedging purposes, and will consider their utilization only
when sufficient understanding of the products and sufficient expertise for their
appropriate use has been developed. A comprehensive derivative policy will be
adopted by the City prior to any utilization of such instruments.
G. REFUNDING GUIDELINES
The Deputy Finance Director shall monitor all outstanding City debt obligations for potential
refinancing opportunities. The City will consider refinancing of outstanding debt to achieve annual
savings or to refinance a bullet payment or spike in debt service. Except for instances in which a
bullet payment or spike in debt service is being refinanced, absent a compelling reason or financial
benefit to the City, any refinancing should not result in an increase to the weighted average life of
the refinanced debt.
Except for instances in which a bullet payment or spike in debt service is being refinanced or
another City policy objective is being accomplished, the City will generally seek to achieve debt
service savings which, on a net present value basis, are at least 3% of the debt being refinanced.
The net present value assessment shall factor in all costs, including issuance, escrow, and
foregone interest earnings of any contributed funds on hand. Any potential refinancing shall
additionally consider whether an alternative refinancing opportunity with higher savings is
reasonably expected in the future. Refundings which produce a net present value savings of less
than 3% will be considered on a case-by-case basis.
H. MARKET COMMUNICATION, ADMINISTRATION, AND REPORTING
1. Rating Agency Relations and Annual or Ongoing Surveillance – The Deputy
Finance Director shall be responsible for maintaining the City’s relationships with
the major rating agencies that rate municipal bond issues (such as S&P Global
Ratings, Fitch Ratings and Moody’s Investors Service). These agencies’ rating
criteria often change and the City cannot control the decisions made by any rating
agency. However, for each debt issue that the City will seek a rating assignment,
the City will strive to obtain and maintain the highest possible underlying, uninsured
rating. In addition to general communication, the Deputy Finance Director shall:
a) Ensure the rating agencies are provided updated financial statements of
the City as they become publically available.
b) Communicate with credit analysts at each agency as may be requested by
the agencies.
c) Prior to each proposed new debt issuance, schedule meetings or
conference calls with agency analysts and provide a thorough update on
the City’s financial position, including the impacts of the proposed debt
issuance.
2. Council Communication – The Deputy Finance Director should report feedback
from rating agencies, when and if available, regarding the City’s financial strengths
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and weaknesses and areas of concern relating to weaknesses as they pertain to
maintaining the City’s existing credit ratings.
3. Continuing Disclosure Compliance – The City shall remain in compliance with
Rule 15c2-12, promulgated by the Securities and Exchange Commission under
the Securities Exchange Act of 1934, by filing (to the extent required by the
applicable continuing disclosure undertaking). To that end, the “Continuing
Disclosure Compliance Procedures,” attached as Appendix I, is hereby
incorporated as part of this Policy.
4. Debt Issue Record-Keeping – A copy of all debt-related records shall be retained
at the City’s offices. At minimum, these records shall include all official statements,
bond legal documents/transcripts, resolutions, trustee statements, leases, and title
reports for each City financing (to the extent available).
Such records shall be retained while any bonds of an issue are outstanding and
during the six-year period following the final maturity or redemption of the bond
issue or, if later, while any bonds that refund bonds of that original issue are
outstanding and for the six year period following the final maturity or redemption
date of the latest refunding bond issue.
5. Arbitrage Rebate – The use of bond proceeds and their investments must be
monitored to ensure compliance with all arbitrage rebate requirements of the
Internal Revenue Code and related Internal Revenue Service regulations, in
keeping with the covenants of the City and/or related entity in the tax certificate for
any federally tax-exempt financing. The Deputy Finance Director shall ensure that
all bond proceeds and investments are tracked in a manner which facilitates
accurate calculation; and, if a rebate payment is due, such payment is made in a
timely manner.
I. CREDIT RATINGS
The City will consider published ratings agency guidelines regarding best financial practices and
guidelines for structuring its capital funding and debt strategies to maintain the highest possible
credit ratings consistent with its current operating and capital needs.
J. CREDIT ENHANCEMENT
Credit enhancement may be used to improve or establish a credit rating on a City debt obligation.
Types of credit enhancement include letters of credit, bond insurance and surety policies. The
City, in consultation with the City municipal advisor, may determine the use of a credit
enhancement, for any debt issue, if it reduces the overall cost of the proposed financing or if the
use of such credit enhancement furthers the City’s overall financing objectives.
K. SB 1029 COMPLIANCE
Senate Bill 1029, signed by the State Governor on September 12, 2016, and enacted as Chapter
307, Statutes of 2016, requires issuers to adopt debt policies addressing each of the five items
below:
i. The purposes for which the debt proceeds may be used.
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Section C.2 (Acceptable Uses of Debt and Proceeds of Debt) and Section C.3
(Short-Term Debt) address the purposes for which debt proceeds may be used.
ii. The types of debt that may be issued.
Section C.3 (Short-Term Debt), Section D (Types of Financing Instruments;
Affordable and Planning Policies), Section E (Structure of Debt) and Section F
(Use of Alternative Debt Instruments) are among the provisions that provide
information regarding the types of debt that may be issued.
iii. The relationship of the debt to, and integration with, the issuer's capital
improvement program or budget, if applicable.
Section C.1 (Acceptable Conditions for the Use of Debt) provides information
regarding the relationship between the City's debt and Capital Improvement
Program.
iv. Policy goals related to the issuer's planning goals and objectives.
As described in Section B (Background), Section D (Types Of Financing;
Affordability and Planning Policies) and other sections, this Policy has been
adopted to assist with the City’s goal of maintaining fiscal sustainability and
financial prudence.
v. The internal control procedures that the issuer has implemented, or will implement,
to ensure that the proceeds of the proposed debt issuance will be directed to the
intended use.
Section C.4 (Internal Control Procedures Concerning Use of Proceeds of Debt)
provides information regarding the City's internal control procedures designed to
ensure that the proceeds of its debt issues are spent as intended.
GLOSSARY
Ad Valorem Tax: A tax calculated “according to the value” of property. In California, property
which is subject to ad valorem taxes is classified as “secured” or “unsecured.” The secured
classification includes property on which any property tax levied by a county becomes a lien on
that property. A tax levied on unsecured property does not become a lien against the unsecured
property, but may become a lien on certain other property owned by the taxpayer.
Annual Coverage Ratio: With respect to any bonds that are secured by a particular source
of revenue for a particular 12 month period, the ratio obtained from dividing the estimated dollar
amount of the revenue during such period by the scheduled principal and interest payment for the
bonds during such period.
Anticipation Notes: Short term notes (such as Tax and Revenue Anticipation Notes, Grant
Anticipation Notes and Bond Anticipation Notes) issued to provide interim financing anticipated to
be paid off from sources to be received at or before the maturity date of the anticipation notes
(such as tax revenues, grant funds, proceeds of long-term bonds).
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Arbitrage: The gain that may be obtained by borrowing funds at a lower (often tax-exempt) rate
and investing the proceeds at higher (often taxable) rates. The ability to earn arbitrage by issuing
tax-exempt securities has been severely curtailed by the Internal Revenue Code of 1986, as
amended.
Assessed Valuation: The “value” of property as set by a taxing authority (such as the county
assessor) on the tax roll for purposes of ad valorem taxation.
Bond: A security that represents an obligation to pay a specified amount of money on a specific
date in the future, typically with periodic interest payments.
Bond Anticipation Notes: Short-term notes issued usually for capital projects and paid from the
proceeds of the issuance of long-term bonds. Provide interim financing in anticipation of bond
issuance.
Bond Counsel: A specialized, qualified attorney retained by the issuer to give a legal opinion
concerning the validity of securities. The bond counsel’s opinion usually addresses the subject
of tax exemption. Bond counsel typically prepares and/or advises the issuer regarding legal
structure, authorizing resolutions, trust indentures and the like.
Bond Insurance: A type of credit enhancement whereby an insurance company indemnifies an
investor against default by the issuer. In the event of failure by the issuer to pay principal and
interest in full and on time, investors may call upon the insurance company to do so. Once issued,
the municipal bond insurance policy is generally irrevocable. The insurance company receives
its premium when the policy is issued and this premium is typically paid out of the bond issue.
Capital Appreciation Bond: A municipal security on which the investment return on an initial
principal amount is reinvested at a stated compounded rate until maturity, at which time the
investor receives a single payment representing both the initial principal amount and the total
investment return.
CDIAC: California Debt and Investment Advisory Commission.
Certificates of Participation: A financial instrument representing a proportionate interest in
payments (such as lease payments) by one party (such as a city acting as a lessee) to another
party (often a JPA or non-profit).
Competitive Sale: A sale of bonds in which an underwriter or syndicate of underwriters submit
sealed bids to purchase the bonds. Bids are awarded on a true interest cost basis (TIC), providing
that other bidding requirements are satisfied. Competitive sales are recommended for simple
financings with a strong underlying credit rating. This type of sale is in contrast to a Negotiated
Sale
Continuing Disclosure: An issuer’s obligations under its continuing disclosure agreements
executed in connection with its bond issues. See “Rule 15c2-12” below. Under each continuing
disclosure agreement, the issuer agrees to periodically provide certain relevant information and
make such information available to the investing market. The information is generally required to
be posted on MSRB’s Electronic Municipal Market Access (EMMA) website.
Credit Enhancement: An instrument (such as a bond insurance policy, a debt service reserve
insurance policy or surety bond, a letter of credit) which may be purchased to provide additional
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assurance that the repayment of the debt will be honored, and hence may enhance the credit
rating for the debt issue.
Credit Rating Agency: A company that rates the relative credit quality of a bond issue and
assigns a letter rating. These rating agencies include Moody’s Investors Service, Standard &
Poor’s, and Fitch Ratings.
Debt Limit: The maximum amount of debt that is legally permitted by applicable charter,
constitution, or statutes.
Debt Service: The amount necessary to pay principal and interest requirements on outstanding
bonds for a given year or series of years.
Default: The failure to pay principal or interest in full or on time and, in some cases, the failure
to comply with non-payment obligations after notice and the opportunity to cure.
Derivative: A financial instrument which derives its own value from the value of another
instrument, usually an underlying asset such as a stock, bond, or an underlying reference such
as an interest rate index.
Disclosure Counsel: A specialized, qualified attorney retained to provide advice on issuer
disclosure obligations, to prepare the official statement and to prepare the continuing disclosure
undertaking.
Discount: The difference between a bond’s par value and the price for which it is sold when
the latter is less than par. Also known as “underwriter discount,” this is the fee paid to the
underwriter its banking and bond marketing services.
Enterprise Activity: Specific activity that generates revenues. Common examples include
water, wastewater and solid waste enterprises. A use of revenues generated by an enterprise
activity for purposes unrelated to that enterprise is often subject to restrictions imposed by law.
Debt service on bonds issued to finance facilities or projects for an enterprise is usually paid
with the revenues of such enterprise.
Financing Team: The working group of City staff and outside consultants necessary to
complete a debt issuance.
Indenture: A contract between the issuer and the trustee stipulating the characteristics of the
financial instrument, the issuer’s obligation to pay debt service, and the remedies available to
the trustee in the event of default.
Issuance Costs: The costs incurred by the bond issuer during the planning and sale of
securities. These costs include by are not limited to municipal advisory, bond counsel,
disclosure counsel, printing, advertising costs, credit enhancement, rating agencies fees, and
other expenses incurred in the marketing of an issue.
Lease: An obligation wherein a lessee agrees to make payments to a lessor in exchange for
the use of certain property. The term may refer to a capital lease or to an operating lease.
Lease Revenue Bonds: Bonds that are secured by the revenue from lease payments made by
one party to another.
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Maturity Date: The date upon which a specified amount of debt principal or bonds matures, or
becomes due and payable by the issuer of the debt.
Municipal Advisor: A consultant who provides the municipal issuer with advice on the
structure of the bond issue, timing, terms and related matters for a new bond issue.
Municipal Securities Rulemaking Board (MSRB): A self-regulating organization established
on September 5, 1975 upon the appointment of a 15-member board by the Securities and
Exchange Agreement. The MSRB, comprised of representatives from investment banking
firms, dealer bank representatives, and public representatives, is entrusted with the
responsibility of writing rules of conduct for the municipal securities market. The MSRB hosts
the EMMA website, which hosts information posted by issuers under their continuing disclosure
undertakings.
Negotiated Sale: A sale of securities in which the terms of the sale are determined through
negotiation between the issuer and the purchaser, typically an underwriter, without competitive
bidding. The negotiated sales process provides control over the financing structure and
issuance timing. Negotiated sales are recommended for unusual financing terms, period of
market volatility and weaker credit quality. A thorough evaluation, usually with the assistance of
the City’s Municipal Advisor, of the proposed bond’s credit characteristics in conjunction with
market conditions will be performed to ensure reasonable final pricing and underwriting spread.
Net Present Value (NPV) – A financial measurement whereby savings of a transaction are
discounted back to money into a “today’s” dollars equivalent. Often the discount rate used is
the true interest cost (TIC—see definition below) rate on the proposed new bond issuance.
Typically, in the municipal market place it is common to then divide the NPV value by the
outstanding par amount of the bonds that are to be refunded to develop a percentage value.
Official Statement (Prospectus): A document published by the issuer in connection with a
primary offering of securities that discloses material information on a new security issue
including the purposes of the issue, how the securities will be repaid, and the financial,
economic and social characteristics of the security for the bonds. Investors may use this
information to evaluate the credit quality of the securities.
Par Value: The face value or principal amount of a security.
Pension Obligation Bonds: Financing instruments used to pay some or all of the unfunded
pension liability of a pension plan. POBs are issued as taxable instruments over a 10-40 year
term or by matching the term with the amortization period of the outstanding unfunded actuarial
accrued liability.
Premium: The excess of the price at which a bond is sold over its face value.
Present Value: The value of a future amount or stream of revenues or expenditures.
Private Placement: A bond issue that is structured specifically for a small number of
purchasers or a single purchaser. Private placements are typically carried out when extraneous
circumstances preclude public offerings. A private placement is considered to be a negotiated
sale.
Redemption: Depending on an issue’s call provisions, an issuer may on certain dates and at
certain premiums, redeem or call specific outstanding maturities. When a bond or certificate is
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redeemed, the issuer is required to pay the maturities’ par value, the accrued interest to the call
date, plus any premium required by the issue’s call provisions.
Refunding: A procedure whereby an issuer refinances an outstanding debt issue by issuing a
new debt issue.
Rule 15c2-12: Rule adopted by the Securities and Exchange Commission setting forth certain
obligations of (i) underwriters to receive, review and disseminate official statements prepared by
issuers of most primary offering of municipal securities, (ii) underwriters to obtain continuing
disclosure agreements from issuers and other obligated persons to provide ongoing annual
financial information on a continuing basis, and (iii) broker-dealers to have access to such
continuing disclosure in order to make recommendations of municipal securities in the
secondary market.
Reserve Fund: A fund established by the indenture of a bond issue into which money is
deposited for payment of debt service in case of a shortfall in current revenues.
Revenue Bond: A bond which is payable from a specific source of revenue and to which the
full faith and credit of an issuer is not pledged. Revenue bonds are payable from identified
sources of revenue, and do not permit the bondholders to compel a jurisdiction to pay debt
service from any other source. Pledged revenues often are derived from the operation of an
enterprise.
Secondary Market: The market in which bonds are sold after their initial sale in the new issue
market.
Serial Bonds: Bonds of an issue that mature in consecutive years or other intervals and are
not subject to mandatory sinking fund provisions.
Tax and Revenue Anticipation Notes (TRANS): Short term notes issued in anticipation of
receiving tax receipts and revenues within a fiscal year. TRANs allow the municipality to
manage the period of cash shortfalls resulting from a mismatch between timing of revenues and
timing of expenditures.
Term Bonds: Bonds that come due in a single maturity but where the issuer may agree to
make periodic payments into a sinking fund for mandatory redemption of term bonds before
maturity and for payment at maturity.
True Interest Cost (TIC): Under this method of computing the interest expense to the issuer of
bonds, true interest cost is defined as the rate necessary to discount the amounts payable on
the respective principal and interest payment dates to the purchase price received for the new
issue of bonds. Interest is assumed to be compounded semi-annually. TIC computations
produce a figure slightly different from the net interest cost (NIC) method because TIC considers
the time value of money while NIC does not.
Trustee: A bank retained by the issuer as custodian of bond proceeds and official
representative of bondholders. The trustee ensures compliance with the indenture. In many
cases, the trustee also acts as paying agent and is responsible for transmitting payments of
interest and principal to the bondholders.
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Underwriter: A broker-dealer that purchases a new issue of municipal securities from the
issuer for resale in a primary offering. The bonds may be purchased either through a negotiated
sale with the issuer or through a competitive sale.
Weighted Average Useful Life: In reference to a particular bond issue, the weighted average
useful life of the assets financed with the proceeds of the bonds is calculated by giving weight to
both the relative dollar amount spent on each asset and the useful life of that asset.
Yield: The net rate of return, as a percentage, received by an investor on an investment. Yield
calculations on a fixed income investment, such as a bond issue, take purchase price and
coupon into account when calculating yield to maturity.
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APPENDIX I
CONTINUING DISCLOSURE COMPLIANCE PROCEDURES
1. BACKGROUND AND TRAINING
Rule 15c2-12, promulgated by the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, requires certain information be disclosed to the municipal bond
marketplace. The SEC has stated that it has a mandate “to adopt rules reasonably designed to
prevent fraudulent, deceptive or manipulative acts or practices in the market for municipal
securities.” The SEC has taken the position that material non-compliance by an issuer with past
continuing disclosure obligations may warrant, without corrective actions, an underwriter being
prohibited from underwriting the issuer’s bonds, and thus prevent the issuer from accessing the
municipal bond marketplace.
The following procedures will help ensure compliance by the City of Menifee (“City”) with
Rule 15c2-12 and its continuing disclosure obligations under continuing disclosure agreements
or similar instruments executed in connection with its municipal bond offerings. Certain
capitalized terms herein will have the meanings ascribed to them in the respective continuing
disclosure agreements or similar instruments.
2. DESIGNATION OF RESPONSIBLE OFFICER
The Responsible Officer will be the officer or other employee responsible for compiling
and filing Annual Reports (as defined in the continuing disclosure agreements) and notices
regarding enumerated events (“Event Notices”), if required to be filed pursuant to the continuing
disclosure agreements or similar instruments. The initial Responsible Officer shall be the City’s
Deputy Finance Director. From time to time, the City Manager may designate a different person
to serve as the Responsible Officer.
3. RESPONSIBLE OFFICER TO BECOME FAMILIAR WITH “EMMA” AND FILING
REQUIREMENTS UNDER CONTINUING DISCLOSURE AGREEMENTS
A. The Responsible Officer will take such action as may be necessary or appropriate
to become familiar with the Municipal Securities Rulemaking Board’s Electronic
Municipal Market Access (“EMMA”) website. The Responsible Officer should
understand how to locate on EMMA the filings made by the City in connection with
bonds issued by the City. If the City is serving as its own Dissemination Agent,
the Responsible Officer will establish a user identification and password for EMMA
and become familiar with uploading documents onto EMMA.
B. For each separate issue of the City’s outstanding bonds, the Responsible Officer
will read the related continuing disclosure agreement or similar instrument and
identify the following:
(i) The date by which the Annual Report must be filed;
(ii) The contents needed to be included in the Annual Report;
(iii) The Event Notices that must be filed; and
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(iv) When Event Notices are required to be filed.
C. The Responsible Officer should be aware of the types of events (the “Listed
Events”) that would require the filing of an Event Notice. If clarification is required
regarding what is meant by a Listed Event, the City’s bond counsel or disclosure
counsel should be contacted to seek such clarification.
4. PREPARATION AND FILING OF ANNUAL REPORTS AND EVENT NOTICES
A. The City will strive to begin the process of completing its audited financial
statements as soon as practicable after the close of each Fiscal Year. Such
audited financial statements should be completed in time to be submitted to the
City Council (or other governing board) before the date that the Annual Report
must be filed.
B. The Responsible Officer will identify any information that is required to be included
in the Annual Report but is not part of the City’s audited financial statements, and
contact the sources necessary to compile such information as soon as possible
after the close of each Fiscal Year. The Responsible Officer will consider adding
any information required by its continuing disclosure agreements or similar
instrument not already included in its audited financial statements into a
supplementary information section of audited financial statements.
C. Following the compilation of the information that is to be included in the Annual
Report, the Responsible Officer will (or will cause the Dissemination Agent to)
submit the Annual Report to EMMA on or before the date on which the Annual
Report must be filed.
D. Each year, by no later than the date that the Annual Report is required to be filed
on EMMA, the Responsible Officer will review the EMMA website to confirm that
the Annual Report has been posted with respect to all applicable securities. If the
Annual Report has not been posted, the dissemination agent will be notified, or the
Responsible Officer will file the Annual Report, as applicable.
E. The Responsible Officer will identity, or with the assistance of consultants engaged
to monitor compliance will identify, the occurrence of a Listed Event and prepare,
or have prepared, the appropriate Event Disclosure. The Responsible Officer will
file (or will cause the dissemination agent to file) Event Notices on EMMA in a
timely manner, when so required by the continuing disclosure agreements or
similar instrument. The Responsible Officer will contact the City’s bond counsel or
disclosure counsel if there are any questions regarding whether an event
constitutes a Listed Event, and whether such occurrence will require the filing of
an Event Notice.
F. In connection with amendments to Rule 15c2-12 adopted in 2018, for any new
continuing disclosure agreement executed on or after February 27, 2019 with
respect to a debt issue (the “Debt”), the Responsible Officer shall, before the Debt
issuance date, review the City’s financial records and create a list of the City’s
existing financial obligations (as such term is defined by Rule 15c2-12) (the
“Financial Obligations List”). The Financial Obligations List shall be continuously
updated by the Responsible Officer. Whenever the City prepares to enter into a
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new financial obligation or modify the terms of an existing financial obligation, the
Responsible Officer shall determine whether the incurrence of such financial
obligation or modification of terms would require an Event Notice under the
continuing disclosure agreement. If a determination is made that an Event Notice
would be required, the Responsible Officer, in consultation with legal counsel, shall
cause the Event Notice to be filed on a timely basis, when so required by the
continuing disclosure agreements or similar instrument.
G. Certain Listed Events are qualified by a materiality standard. Materiality is
determined according to SEC guidance available at the time. If clarification is
required regarding materiality on any potential Listed Event, the Responsible
Officer shall contact the City’s bond counsel or disclosure counsel to seek
clarification. The Responsible Officer’s determination of materiality will depend on
the facts and circumstances surrounding the event and will take into consideration
many factors including, but not limited to, the following:
Source of security pledged for repayment of the financial obligation,
Rights associated with such a pledge (e.g., senior versus subordinate),
Principal amount or notional amount (in the case of a derivative instrument
or guarantee of a derivative instrument),
Covenants,
Events of default,
Remedies,
Other similar terms that affect security holders to which the issuer agreed
at the time of incurrence,
Size of the overall balance sheet,
Size of existing obligations, and
Size of the overall bond portfolio.
5. RETENTION OF RECORDS
A. The documents identified below should be retained for a period of at least six years
following the termination of the City’s obligations (i.e., the legal defeasance, prior
redemption or payment in full of the related issue of municipal securities) under a
continuing disclosure agreement or similar instrument.
B. The City will retain, in its records, the transcripts containing the documents related
to each issue of bonds or other obligations of the City.
C. The City will retain copies, in paper or electronic form, of each Listed Event Notice
submitted to EMMA.
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D. The City will retain copies, in paper or electronic form, of each Annual Report
submitted to EMMA.
E. To the extent that the content of an Annual Report is based on source materials
created or obtained by the City, the City will retain in its records, such source
materials created or obtained by the City.
Revision History
Revision No. Date
Approved Approved By: Comments
0 City Council Original Policy
____________________________________ _______________________
Bill Zimmerman, Mayor Date
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Packet Pg. 63 Attachment: Debt Issuance and Management Policy [Revision 1] (2574 : Resolution Approving the Debt Issuance and Management Policy)
RESOLUTION NO. 20-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE, CALIFORNIA
ADOPTING A DEBT ISSUANCE AND MANAGEMENT POLICY
WHEREAS, California Senate Bill 1029 (2016) (“SB 1029”) was signed into law on
September 12, 2016; and
WHEREAS, SB 1029 amends Section 8855 of the Government Code, requiring state and
local agencies to adopt comprehensive debt management policies; and,
WHEREAS, SB 1029 requires that a comprehensive debt management policy be adopted
at least 30 days prior to issuing any new debt on or after January 21, 2017; and,
WHEREAS, the City Council of the City of Menifee desires to comply with state law as it
relates to debt issuance requirements established by SB 1029.
NOW, THEREFORE, be it resolved that the City Council of the City of Menifee hereby
adopts the Debt Issuance and Management Policy
PASSED, APPROVED AND ADOPTED this 15th day of July 2020.
____________________________
Bill Zimmerman, Mayor
Attest:
_______________________________
Sarah A. Manwaring, City Clerk
Approved as to form:
_______________________________
Jeffrey T. Melching, City Attorney
10.4.b
Packet Pg. 64 Attachment: Resolution - Adopting the Debt Issuance and Management Policy [Revision 1] (2574 : Resolution Approving the Debt Issuance and
10.4.c
Packet Pg. 65 Attachment: Resolution No. 11-233 Statement of Policies and Procedures for Special Assessment and CFD Debt Financing Programs (2574 :
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10.4.d
Packet Pg. 96 Attachment: Resolution No. 14-394 Addendum to It's Policies Related to Special Districts and CFDs (2574 : Resolution Approving the Debt
CITY OF MENIFEE
SUBJECT: Menifee Crime Watch Donation
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Danita Robertson, Police Support Services Manager
REVIEWED BY: Pat Walsh, Police Chief
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
1. Approve and authorize the appropriation and expenditure of a $10,000 donation from the
Menifee Crime Watch to the City of Menifee; and
2. Adopt a Resolution amending the Fiscal Year 2020/21 operating budget.
DISCUSSION
The Menifee Crime Watch (formerly known as Sun City Crime Watch) was established as a
non-profit volunteer program to provide weekday patrol service between 9 a.m. and 9 p.m.,
adding an additional level of awareness for issues in the community. With the formation of the
Menifee Police Department and its plan for a Volunteer Program, all Crime Watch functions
were discontinued. The Menifee Police Department desires to bring all qualified and interested
Menifee Crime Watch staff over to serve as Menifee Police Department Volunteers.
As a result, the Menifee Crime Watch President Board of Directors voted to close the program’s
financial accounts and generously offered this $10,000 for direct application to expenses
associated with the Menifee Police Department’s Volunteer Program.
Per the City’s Donation Acceptance Policy, donations with an aggregate value of less than
$100,000, require the Beneficiary Department Head to seek approval from the City Manager or
designee to accept the donation and shall seek approval, by Resolution, from City Council to
appropriate and expend the donation.
FISCAL IMPACT
With the City Council’s approval of this donation, the Finance Department will increase the
budgeted revenues in Account #100-3855, established for Donations and appropriate those
funds to newly created Account #100-4911-52509, the Police Volunteer Program. If these funds
are not entirely expended in the current fiscal year, the balance remaining in the expenditure
10.5
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City of Menifee Staff Report
Menifee Crime Watch Donation
July 15, 2020
Page 2 of 2
account will rollover to Fiscal Year 2021/22 ensuring that all donated funds are spent as
intended on the new Menifee Police Department Volunteer Program.
ATTACHMENTS
1. Resolution - Police Volunteer Program Donation Acceptance
2. Donation Acceptance - Menifee Crime Watch
10.5
Packet Pg. 98
RESOLUTION NO. 20-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE, CALIFORNIA,
AMENDING THE FISCAL YEAR 2020/21 OPERATING BUDGET
WHEREAS, the City of Menifee, California adopted a budget for the fiscal year 2020/21
with Resolution 20-916 on June 3rd, 2020; and
WHEREAS, the City of Menifee does from time to time have unanticipated revenues and
expenditures arise; and
WHEREAS, it is in the best interest of the citizens of the City of Menifee to allocate budget
resources to continue the operations of the City of Menifee; and
WHEREAS, the City Council of the City of Menifee needs to amend the fiscal year 2020/21
budget as follows:
AMENDMENTS TO ADOPTED BUDGET:
Adopted Budget: $49,389,575
1. Record Revenue Estimate(s):
CITY COUNCIL
MEETING
DESCRIPTION
ACCOUNT #
AMOUNT
July 15, 2020 Donation 100-3855 10,000
TOTAL: $10,000
Increase FY 2020/21 Revenue Budget: $49,399,575
Adopted Budget: $49,389,575
2. Record Appropriation(s):
CITY COUNCIL
MEETING
DESCRIPTION
ACCOUNT #
AMOUNT
July 15, 2020 Police Volunteer
Program
100-4911-52509 10,000
TOTAL: $10,000
Increase FY 2020/21 Expenditure Budget: $49,399,575
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Packet Pg. 99 Attachment: Resolution - Police Volunteer Program Donation Acceptance [Revision 1] (2578 : Menifee Crime Watch Donation)
Amending the Fiscal Year 2020/21 Budget
2
3. Record Transfer of Funds:
FROM ACCOUNT #
TO ACCOUNT #
AMOUNT
TOTAL: 0
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MENIFEE DOES HEREBY
RESOLVE AS FOLLOWS:
The annual budget for the City of Menifee for fiscal year 2020/21 is hereby increased and
amended to reflect unanticipated revenues and expenditures as follows:
Amended FY 2020/21 Revenue Budget: $ 49,399,575
Amended FY 2020/21 Expenditure Budget: $ 49,399,575
PASSED, APPROVED AND ADOPTED this 15th day of July, 2020.
_____________________________
Bill Zimmerman, Mayor
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Sarah A. Manwaring, City Clerk Jeffrey T. Melching, City Attorney
10.5.a
Packet Pg. 100 Attachment: Resolution - Police Volunteer Program Donation Acceptance [Revision 1] (2578 : Menifee Crime Watch Donation)
June 29, 2020
10.5.b
Packet Pg. 101 Attachment: Donation Acceptance - Menifee Crime Watch (2578 : Menifee Crime Watch Donation)
CITY OF MENIFEE
SUBJECT: Menifee Police Department Start-Up Year Budget Carry-
Overs to Fiscal Year 20/21
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Wendy Preece, Deputy Finance Director
REVIEWED BY: Rochelle Clayton, Deputy City Manager
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Approve the attached budget amendment Resolutions authorizing the Menifee Police
Departments budget carryovers, as of June 30, 2020 for start-up year expenditures, to fiscal
year 2020/21.
DISCUSSION
With the passage of the budget, it is assumed that all revenues will be earned and all
expenditures will be expended by the end of the fiscal year. Due to the timing of receiving goods
and services, some expenditures are not fully exhausted within the fiscal year and must be
carried over into the new fiscal year. These expenditures, if not incorporated within the following
year’s budget, must be re-appropriated by City Council and added to the newly adopted budget.
In the case of the Menifee Police Department, there have been certain purchases that are
necessary for the operation of the department that have not been feasible to purchase as of yet
or the timing has not been right. It is because of this that we are asking to roll the estimated
ending balance of the Menifee Police Departments FY 2019/20 operating budget into FY
2020/21 to continue the purchasing of needed capital equipment and supplies without delay for
this start-up year. In September of 2020 staff will come back to the City Council with our regular
request to roll forward selected department operating budgets, grants, capital projects and
encumbered budgets from FY 2019/20 to FY 2020/21
The following is a history of the adopted Menifee Police budget with requested and approved
budget carryovers. These are not additional budget dollars but merely timing differences in the
actual purchases.
10.6
Packet Pg. 102
City of Menifee Staff Report
Menifee Police Start-Up Year Budget Carry-Overs to Fiscal Year 20/21
July 15, 2020
Page 2 of 2
Fiscal
Year
Adopted
Budget
Budget
Adjs/Transfers
Total
Budget
Expenditures Balance
2018/2019 $0.00 $2,711,556
Transfer
$2,711,556 ($273,779) $2,437,777
Rolled
2019/2020 $6,246,096 $2,437,777
Rolled
$1,220,000
Transfer
$9,903,873 ($9,200.000) $703,873
Requested to
be rolled
2020/2021 $14,958,391 $703,873
Requested to be
Rolled
$15,662,264 $15,662,264 $0.00
FISCAL IMPACT
Total Menifee Police Department appropriations for the FY 2020/2021 operating and capital
budget will be increased by $703,873. This amount was previously authorized during the FY
2019/20 budget year and was not fully expended. The authorization by City Council to carry
over these appropriations will allow capital projects and outstanding operating purchases for the
Menifee Police Department to continue without interruption or delay. If there are further budget
savings unexpended in fiscal year 2019/2020 that are needed for additional start-up
expenditures, staff will come back to City Council with another request once those savings are
identified.
ATTACHMENTS
1. Resolution - General Fund Police Start-Up Year Budget Roll-Over
2. Resolution - Measure DD Police Start-Up Year Budget Roll-Over
10.6
Packet Pg. 103
RESOLUTION NO. 20-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE, CALIFORNIA,
AMENDING THE FISCAL YEAR 2020/21 OPERATING BUDGET
WHEREAS, the City of Menifee, California adopted a budget for the fiscal year 2020/21
with Resolution 20-916 on June 3rd, 2020; and
WHEREAS, the City of Menifee does from time to time have unanticipated revenues and
expenditures arise; and
WHEREAS, it is in the best interest of the citizens of the City of Menifee to allocate budget
resources to continue the operations of the City of Menifee; and
WHEREAS, the City Council of the City of Menifee needs to amend the fiscal year 2020/21
budget as follows:
AMENDMENTS TO ADOPTED BUDGET:
General Fund Adopted Budget: $49,389,575
1. Record Revenue Estimate(s):
CITY COUNCIL
MEETING
DESCRIPTION
ACCOUNT #
AMOUNT
July 15, 2020 Donation 100-3855 10,000
TOTAL: $10,000
Increased General Fund FY 2020/21 Revenue Budget: $49,399,575
General Fund Adopted Budget: $49,389,575
2. Record Appropriation(s):
CITY COUNCIL
MEETING
DESCRIPTION
ACCOUNT #
AMOUNT
July 15, 2020 Police Volunteer
Program
100-4911-52509 10,000
July 15, 2020 Police Start-Up Year
Budget Roll-Over
100-4911-58090 273,873
TOTAL: $283,873
Increased General Fund FY 2020/21 Expenditure Budget: $49,673,448
10.6.a
Packet Pg. 104 Attachment: Resolution - General Fund Police Start-Up Year Budget Roll-Over [Revision 1] (2582 : Menifee Police Start-Up Year Budget Carry-
Amending the Fiscal Year 2020/21 Budget
2
3. Record Transfer of Funds:
FROM ACCOUNT #
TO ACCOUNT #
AMOUNT
TOTAL: 0
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MENIFEE DOES HEREBY
RESOLVE AS FOLLOWS:
The General Fund annual budget for the City of Menifee for fiscal year 2020/21 is hereby
increased and amended to reflect unanticipated revenues and expenditures as follows:
Amended FY 2020/21 Revenue Budget: $ 49,399,575
Amended FY 2020/21 Expenditure Budget: $ 49,673,448
PASSED, APPROVED AND ADOPTED this 15th day of July, 2020.
_____________________________
Bill Zimmerman, Mayor
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Sarah A.Manwaring, City Clerk Jeffrey T. Melching, City Attorney
10.6.a
Packet Pg. 105 Attachment: Resolution - General Fund Police Start-Up Year Budget Roll-Over [Revision 1] (2582 : Menifee Police Start-Up Year Budget Carry-
RESOLUTION NO. 20-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE, CALIFORNIA,
AMENDING THE FISCAL YEAR 2020/21 OPERATING BUDGET
WHEREAS, the City of Menifee, California adopted a budget for the fiscal year 2020/21
with Resolution 20-916 on June 3rd, 2020; and
WHEREAS, the City of Menifee does from time to time have unanticipated revenues and
expenditures arise; and
WHEREAS, it is in the best interest of the citizens of the City of Menifee to allocate budget
resources to continue the operations of the City of Menifee; and
WHEREAS, the City Council of the City of Menifee needs to amend the fiscal year 2020/21
budget as follows:
AMENDMENTS TO ADOPTED BUDGET:
Measure DD Fund Adopted Budget: $10,367,000
1. Record Revenue Estimate(s):
CITY COUNCIL
MEETING
DESCRIPTION
ACCOUNT #
AMOUNT
TOTAL: $0
Increased Measure DD Fund FY 2020/21 Revenue Budget: $10,367,000
Measure DD Fund Adopted Budget: $10,297,000
2. Record Appropriation(s):
CITY COUNCIL
MEETING
DESCRIPTION
ACCOUNT #
AMOUNT
July 15, 2020 Police Start-Up Year
Roll-Over
105-4911-58090 430,000
TOTAL: $430,000
Increased Measure DD Fund FY 2020/21 Expenditure Budget: $10,727,000
10.6.b
Packet Pg. 106 Attachment: Resolution - Measure DD Police Start-Up Year Budget Roll-Over [Revision 1] (2582 : Menifee Police Start-Up Year Budget Carry-
City of Menifee Resolution No. 20-___
Amending the Fiscal Year 2020/21 Budget
2
3. Record Transfer of Funds:
FROM ACCOUNT #
TO ACCOUNT #
AMOUNT
TOTAL: 0
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MENIFEE DOES HEREBY
RESOLVE AS FOLLOWS:
The Measure DD Fund annual budget for the City of Menifee for fiscal year 2020/21 is
hereby increased and amended to reflect unanticipated expenditures as follows:
Amended FY 2020/21 Expenditure Budget: $ 10,727,000
PASSED, APPROVED AND ADOPTED this 15th day of July, 2020.
_____________________________
Bill Zimmerman, Mayor
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Sarah A. Manwaring, City Clerk Jeffrey T. Melching, City Attorney
10.6.b
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CITY OF MENIFEE
SUBJECT: FY2020/21 on Call Contract Services (Economic
Development)
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Margarita Cornejo, Financial Services Manager
REVIEWED BY: Jeff Wyman, Assistant City Manager
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Approve the Professional Services Agreements for On Call Services for the Economic
Development Department for Fiscal Year (FY) 2020-21.
DISCUSSION
The Economic Development Department currently utilizes on-call consultants to provide
necessary services such as, graphic design, videography, market studies and the creation of
Menifee Matters. The current professional service agreements have expired on June 30, 2020,
as they are concurrent with the corresponding Fiscal Year (FY). Accordingly, new agreements
will need to be executed in order to provide continuity of services to meet the needs of the set
Economic Development Projects for FY 2020/21. Collectively as a whole, the sum of all
contracts would not exceed the approved line item budget for services approved in the
Economic Development FY 2020/21 budget, with the request of a cumulative $84,900 for the
agreements. The terms of the proposed Fiscal Year 2020/21 agreements are from July 1, 2020
to June 30, 2021. The Economic Development Department is requesting to execute the
following Professional Service Agreements:
Searle Creative Marketing & Design Group
The agreement between the City of Menifee and Searle Creative Marketing & Design Group
provides on-call marketing and design services. Searle Creative will provide services that
include, but not limited to, the creation of professional and symbiotic branding marketing needs
such as, but not limited to: advertisements, marketing materials, logo creation, and promotional
items. This vendor has been selected for their previous work with the Economic Development
Department and is needed for their unique skills in marketing and design that visually appeals to
the community that is used by almost every department in the City.
10.7
Packet Pg. 108
City of Menifee Staff Report
FY2020/21 on Call Contract Services (Economic Development)
July 15, 2020
Page 2 of 3
Visionaries Image Company
The agreement between the City and Visionaries Image Company provides for the production of
the City of Menifee On-Call video, aerial, and photography services for events and
programming. Visionaries Image will provide pre-production services, production services, and
post-production services. The intent for the following agreement is to create/develop
professional videography for, but not limited to, the following projects: State of the City-A year in
Review Video, Brokers Luncheon Marketing Video, Measure DD update Informational video, A
Future of Menifee Video, B-roll capture at major events on an on-call basis, as well as on-call
needed basis by the department. Informal bids were received, and Visionaries Image Company
was the vendor selected based on expertise, creative style, and capacity to take on large
projects in a short time frame with ample available staff for pre-post production and directing
needs.
JPW Communications
The Professional Service Agreement between the City and JPW Communications provides for
the creation of the Menifee Matters Magazine (24-pages) to be sent out to all Menifee residents
four times a year. Menifee Matters provides important information on key events, activities, and
updates occurring within the City. The scope of work of this contract covers content
development, project management, graphic design, production, and photography for all three
issues for FY 20/21. This contract has been modified from four issues per year to three issues
per year due to the Economic Development budget reductions for FY 20/21 related to the
COVID-19 pandemic. This agreement is the third annual single year contract, out of a three year
contract, in part of an RFP that was released during fiscal year (18/19) where JPW was
awarded the overall project for three years. The cost does not include postage, or printing.
FISCAL IMPACT
The fiscal impact of the proposed agreements is an aggregate total of $84,900. Funding for the
proposed agreements was included within the approved FY 2020/21 Economic Development
Budget.
Below is a summary of the proposed contracts, specific functions and the correlating approved
account.
Company Duties Amount Account
Searle Creative Graphic design $30,000 100-4350-52800
Visionaries Image Co. Video production services $30,000 100-4350-52800
JPW Communications Menifee Matters $24,900 100-4350-52800
Total Amount $84,900
No additional budget appropriation(s) is required for this action.
10.7
Packet Pg. 109
City of Menifee Staff Report
FY2020/21 on Call Contract Services (Economic Development)
July 15, 2020
Page 3 of 3
ATTACHMENTS
1. 2021 ED- PROFESSIONAL SERVICES AGREEMENT (JPW Communications 20-21
Menifee Matters)
2. 2021 ED- PROFESSIONAL SERVICES AGREEMENT (Searle Creative On Call
Marketing)
3. 2021 ED- PROFESSIONAL SERVICES AGREEMENT (Visionaries On Call Video
Production)
10.7
Packet Pg. 110
2671/031858-0001
7630421.2 a05/22/20
CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY20/21 MENIFEE MATTERS: DEVELOPMENT & PUBLICATION SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective
this _____ day of __________, 2020 (“Effective Date”) by and between the CITY OF MENIFEE,
a California municipal corporation, (“City”) and JPW COMMUNICATIONS, LLC, a Limited
Liability Company (LLC) (“Consultant”). City and Consultant may sometimes herein be referred
to individually as a “Party” and collectively as the “Parties.”
SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated
herein by this reference (the “Services”). Consultant will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. In the event of a conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on July 1, 2020 and
shall end on June 30, 2021 unless the term of this Agreement is otherwise terminated or extended
as provided for in Section 8. The time provided to Consultant to complete the Services required
by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in
Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a
provider of first class work and services and Consultant is experienced in performing the Services
contemplated herein and, in light of such status and experience, Consultant shall perform the
Services required pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Consultant is engaged in the
geographical area in which Consultant practices its profession and to the sole satisfaction of the
Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to
perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons, Consultant
shall, immediately upon receiving notice from City of such desire of City, reassign such person or
persons.
1.4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations
hereunder.
1.5 Authorization to Perform Services. Consultant is not authorized to perform any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
10.7.a
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SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed TWENTY FOUR THOUSAND
NINE HUNDRED DOLLARS AND ZERO CENTS ($24,900.00) notwithstanding any
contrary indications that may be contained in Consultant’s proposal, for the Services to be
performed and reimbursable costs incurred under this Agreement. In the event of a conflict
between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement
shall prevail. City shall pay Consultant for the Services rendered pursuant to this Agreement at
the time and in the manner set forth herein. The payments specified below shall be the only
payments from City to Consultant for the Services rendered pursuant to this Agreement.
Consultant shall submit all invoices to City in the manner specified herein. Except as specifically
authorized in advance by City, Consultant shall not bill City for duplicate services performed by
more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first
invoice, etc.;
b. The beginning and ending dates of the billing period;
c. A “Task Summary” containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent, and subcontractor of Consultant performing the
Services hereunder necessary to complete the Services described in Exhibit A;
f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
10.7.a
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2.2 Monthly Payment. City shall make monthly payments, based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
2.3 Final Payment. City shall pay the last five percent (5%) of the total amount due
pursuant to this Agreement within sixty (60) days after completion of the Services and submittal
to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum
amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred for Services satisfactorily completed and for reimbursable
expenses as of the date of written notice of termination. Consultant shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary for Consultant’s use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and time
of furnishing those facilities shall be in the sole discretion of City. In no event shall City be
required to furnish any facility that may involve incurring any direct expense, including but not
limited to computer, long-distance telephone or other communication charges, vehicles, and
reproduction facilities.
10.7.a
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SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense,
shall procure the types and amounts of insurance checked below and provide Certificates of
Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the
requirements of this section and which is satisfactory, in all respects, to City. Consultant shall
maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not
allow any subcontractor, consultant or other agent to commence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereof to City. Verification of the required insurance shall be submitted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between City and other Insureds.
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions of the California
Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per
accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION
DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only if the program of self-insurance complies
fully with the provisions of the California Labor Code. Determination of whether a self-insurance
program meets the standards of the California Labor Code shall be solely in the discretion of the
Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
4.2 Commercial General and Automobile Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO
MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General
Liability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use of hired, owned, and non-owned automobiles.
b. Minimum scope of coverage. Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
10.7.a
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Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c. Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees, agents,
and volunteers.
4.3 Professional Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for licensed
professionals performing the Services pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or
self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
b. Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no
later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after the expiration or termination of this
Agreement or completion of the Services, so long as commercially available at
reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that precedes the Effective
Date of this Agreement, Consultant must provide extended reporting coverage for
a minimum of five (5) years after the expiration or termination of this Agreement
or the completion of the Services. Such continuation coverage may be provided by
one of the following: (1) renewal of the existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroactive date no later
than the commencement of the Services under this Agreement. City shall have the
right to exercise, at Consultant’s sole cost and expense, any extended reporting
provisions of the policy, if Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
10.7.a
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4.4 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this Section is to be
placed with insurers with a Bests’ rating of no less than A:VII and admitted in California.
b. Verification of coverage. Prior to beginning the Services under this
Agreement, Consultant shall furnish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of all
policies, including complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The Certificate of Insurance must include the following reference:
FY20/21 MENIFEE MATTERS: DEVELOPMENT & PUBLICATION SERVICES. The
name and address for Additional Insured endorsements, Certificates of Insurance and Notice of
Cancellation is: City of Menifee, 29844 Haun Road, Menifee, CA 92586. City must be endorsed
as an additional insured for liability arising out of ongoing and completed operations by or on
behalf of Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant shall
provide written notice to City within ten (10) working days if: (1) any of the required insurance
policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible
or self insured retention is increased.
d. Additional insured; primary insurance. City and its officers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
the following: liability arising out of the Services performed by or on behalf of Consultant,
including the insured’s general supervision of Consultant; products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles
owned, leased, or used by Consultant in the course of providing the Services pursuant to this
Agreement. The coverage shall contain no special limitations on the scope of protection afforded
to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City
as an additional insured must apply on a primary and non-contributory basis with respect to any
insurance or self-insurance program maintained by City. Additional insured status shall continue
for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
e. Deductibles and Self-insured Retentions. Consultant shall obtain the
written approval of City for the self-insured retentions and deductibles before beginning any of the
Services.
During the term of this Agreement, only upon the prior express written
authorization of the Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
10.7.a
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retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses
and related investigations, claim administration, and defense expenses that is satisfactory in all
respects to each of them.
f. Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated
herein.
g. Variation. The Contract Administrator may, but is not required to, approve
in writing a variation in the foregoing insurance requirements, upon a determination that the
coverage, scope, limits, and forms of such insurance are either not commercially available, or that
City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may, at its sole option, exercise any of the following
remedies, which are alternatives to other remedies City may have and are not the exclusive remedy
for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its officers, employees, officials, volunteers, and agents from and against
any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action
(whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards,
assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and
expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a
defense for City, the legal costs of counsel retained by City) and any judgment (collectively,
“Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error,
or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of professional
services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant shall
indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and
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all of its officers, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for which
Consultant is legally liable, including but not limited to officers, agents, employees or
subcontractors of Consultant.
5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply to
claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5
shall not release City from liability arising from gross negligence or willful acts or omissions of
City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of the Services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City
shall not have the right to control the means by which Consultant accomplishes the Services
rendered pursuant to this Agreement. The personnel performing the Services under this
Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its officers,
employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment by
City, including but not limited to eligibility to enroll in the California Public Employees
Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply
with all applicable local, state, and federal laws and regulations applicable to the performance of
the work hereunder. Consultant shall not hire or employ any person to perform work within City
or allow any person to perform the Services required under this Agreement unless such person is
properly documented and legally entitled to be employed within the United States. Any and all
work subject to prevailing wages, as determined by the Director of Industrial Relations of the State
of California, will be the minimum paid to all laborers, including Consultant’s employee and
subcontractors. It is understood that it is the responsibility of Consultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the California Department of
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Industrial Relations (“DIR”) pursuant to California Public Utilities Code, Sections 465, 466, and
467 by calling 415-703-4774. Appropriate records demonstrating compliance with such
requirement shall be maintained in a safe and secure location at all times, and readily available at
City’s request. Consultant shall indemnify, defend, and hold City and its elected and appointed
boards, members, officials, officers, agents, representatives, employees, and volunteers harmless
from and against any liability, loss, damage, cost or expenses (including but not limited to
reasonable attorneys’ fees, expert witness fees, court costs, and costs incurred related to any
inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any
party performing the Services of any applicable local, state, and/or federal law, including, without
limitation, any applicable federal and/or state labor laws (including, without limitation, the
requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of Section
1781 of the Labor Code, as the same may be amended from time to time, or any other similar law;
and/or (iii) failure by Consultant or any party performing the Services to provide any required
disclosure or identification as required by Labor Code Section 1781, as the same may be amended
from time to time, or any other similar law. It is agreed by the Parties that, in connection with
performance of the Services, including, without limitation, any and all public works (as defined
by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages
under California law and/or the implementation of Labor Code Section 1781, as the same may be
amended from time to time, and/or any other similar law. Consultant acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain
and maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon
written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’
written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be
entitled to compensation for the Services performed up to the date of termination; City, however,
may condition payment of such compensation upon Consultant delivering to City any or all
documents, photographs, computer software, video and audio tapes, and other materials provided
to Consultant or prepared by or for Consultant or City in connection with this Agreement.
10.7.a
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8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of
this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and agrees
that, if City grants such an extension, City shall have no obligation to provide Consultant with
compensation beyond the maximum amount provided for in this Agreement. Similarly, unless
authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by
all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination
of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
professional reputation and competence of Consultant. Consultant may not assign this Agreement
or any interest therein without the prior written approval of the Contract Administrator. Consultant
shall not subcontract any portion of the performance contemplated and provided for herein, other
than to the subcontractors noted in Consultant’s proposal, without prior written approval of the
Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant
shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Consultant
shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the
following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in
Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services
described in Exhibit A that is unfinished at the time of breach and the amount that City
would have paid Consultant pursuant to Section 2 if Consultant had completed the
Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records,
files, or any other documents or materials, in electronic or any other form that Consultant prepares
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or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the
property of City. Consultant hereby agrees to deliver those documents to City upon the expiration
or termination of this Agreement. It is understood and agreed that the documents and other
materials, including but not limited to those described above, prepared pursuant to this Agreement
are prepared specifically for City and are not necessarily suitable for any future or other use. Any
use of such documents for other projects by City shall be without liability to Consultant. City and
Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other
documents are confidential and will not be released to third parties without prior written consent
of both Parties unless required by law.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive and
perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs,
rights of reproduction, and other intellectual property embodied in plans, specifications, studies,
drawings, estimates, test data, survey results, models, renderings, and other documents or works
of authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which
are prepared or caused to be prepared by Consultant under this Agreement (“Documents and
Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-
exclusive and perpetual license for any Documents and Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any
and all Documents and Data. Consultant makes no such representation and warranty in regard to
Documents and Data which were prepared by design professionals other than Consultant or
provided to Consultant by the City. City shall not be limited in any way in its use of the Documents
and Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers,
books of account, invoices, vouchers, canceled checks, and other records or documents evidencing
or relating to charges for the Services or expenditures and disbursements charged to City under
this Agreement for a minimum of three (3) years, or for any longer period required by law, from
the date of final payment to Consultant under this Agreement. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that Section 9.3 of
this Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be
subject to the examination and audit of the State Auditor, at the request of City or as part of any
audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to
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any other relief to which that Party may be entitled; provided, however, that the attorneys’ fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the
litigation. The court may set such fees in the same action or in a separate action brought for that
purpose.
10.2 Applicable Law; Venue. The internal laws of the State of California shall govern
the interpretation and enforcement of this Agreement. In the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affected thereby and all other parts of this Agreement shall
nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. The waiver of any breach of a specific provision of
this Agreement does not constitute a waiver of any other breach of that term or any other term of
this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit
of and shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Representative. All matters under this Agreement shall be handled for
Consultant by Jennifer L. Windle, Founder & President (“Consultant’s Representative”). The
Consultant’s Representative shall have full authority to represent and act on behalf of Consultant
for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct
the Services, using his best skill and attention, and shall be responsible for all means, methods,
techniques, sequences, and procedures and for the satisfactory coordination of all portions of the
Services under this Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a City
employee, Kayla Charters, Economic Development Analyst (“Contract Administrator”). All
correspondence shall be directed to or through the Contract Administrator or his designee. The
Contract Administrator shall have the power to act on behalf of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
JPW COMMUNICATIONS, LLC
Attn: Jennifer L. Windle, Founder & President
2710 LOKER AVE W. SUITE 300
CARLSBAD, CA 92010
10.7.a
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Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Kayla Charters, Economic Development Analyst
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page of a technical report, first page of design specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and
Signature of Registered Professional with report/design responsibility,” as in the following
example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default
or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either Party by reason of the authorship of
this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of each of
the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement, such Party is formally bound to the provisions of this Agreement, and
(iv) that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
10.7.a
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10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors,
assigns, and all persons claiming under or through them, that in the performance of this Agreement
there shall be no discrimination against or segregation of, any person or group of persons on
account of any impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Party Beneficiaries. With the exception of the specific provisions set
forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event of any default or breach by City or for any amount which may become due to
Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or
pressure is used against or in concert with any officer or employee of City in connection with the
award, terms or implementation of this Agreement, including any method of coercion, confidential
financial arrangement, or financial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of
Consultant, in connection with the award of this Agreement or any work to be conducted as a result
of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee of City,
or their designees or agents, and no public official who exercises authority over or has
responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
10.7.a
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Jennifer Windle, President & Managing
Member
Leslie Spring, Senior Communications
Manager
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
10.7.a
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EXHIBIT A
EXHIBIT A
SCOPE OF SERVICES
Services shall include, but are not limited, to content development/publication services of Menifee
Matters in the amount not to exceed TWENTY FOUR THOUSAND NINE HUNDRED
DOLLARS AND ZERO CENTS ($24,900.00), and as further detailed in the following pages.
10.7.a
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EXHIBIT A
10.7.a
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10.7.a
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10.7.a
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CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY 2020/21 ON-CALL MARKETING SERVICES
(ECONOMIC DEVELOPMENT DEPARTMENT)
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective
this _____ day of __________, 2020 (“Effective Date”) by and between the CITY OF MENIFEE,
a California municipal corporation, (“City”) and SEARLE CREATIVE GROUP LLC, a Limited
Liability Company (LLC) (“Consultant”). City and Consultant may sometimes herein be referred
to individually as a “Party” and collectively as the “Parties.”
SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated
herein by this reference (the “Services”). Consultant will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. In the event of a conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on June 1, 2020 and
shall end on June 30, 2021 unless the term of this Agreement is otherwise terminated or extended
as provided for in Section 8. The time provided to Consultant to complete the Services required
by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in
Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a
provider of first class work and services and Consultant is experienced in performing the Services
contemplated herein and, in light of such status and experience, Consultant shall perform the
Services required pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Consultant is engaged in the
geographical area in which Consultant practices its profession and to the sole satisfaction of the
Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to
perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons, Consultant
shall, immediately upon receiving notice from City of such desire of City, reassign such person or
persons.
1.4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations
hereunder.
10.7.b
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1.5 Authorization to Perform Services. Consultant is not authorized to perform any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed THIRTY THOUSAND
DOLLARS AND ZERO CENTS ($30,000.00) notwithstanding any contrary indications that
may be contained in Consultant’s proposal, for the Services to be performed and reimbursable
costs incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit
A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant
for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein.
The payments specified below shall be the only payments from City to Consultant for the Services
rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner
specified herein. Except as specifically authorized in advance by City, Consultant shall not bill
City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first
invoice, etc.;
b. The beginning and ending dates of the billing period;
c. A “Task Summary” containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent, and subcontractor of Consultant performing the
Services hereunder necessary to complete the Services described in Exhibit A;
f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
10.7.b
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29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
2.3 Final Payment. City shall pay the last five percent (5%) of the total amount due
pursuant to this Agreement within sixty (60) days after completion of the Services and submittal
to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum
amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred for Services satisfactorily completed and for reimbursable
expenses as of the date of written notice of termination. Consultant shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary for Consultant’s use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and time
of furnishing those facilities shall be in the sole discretion of City. In no event shall City be
required to furnish any facility that may involve incurring any direct expense, including but not
limited to computer, long-distance telephone or other communication charges, vehicles, and
reproduction facilities.
10.7.b
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SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense,
shall procure the types and amounts of insurance checked below and provide Certificates of
Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the
requirements of this section and which is satisfactory, in all respects, to City. Consultant shall
maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not
allow any subcontractor, consultant or other agent to commence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereof to City. Verification of the required insurance shall be submitted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between City and other Insureds.
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions of the California
Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per
accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION
DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only if the program of self-insurance complies
fully with the provisions of the California Labor Code. Determination of whether a self-insurance
program meets the standards of the California Labor Code shall be solely in the discretion of the
Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
4.2 Commercial General and Automobile Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO
MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General
Liability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use of hired, owned, and non-owned automobiles.
b. Minimum scope of coverage. Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
10.7.b
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Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c. Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees, agents,
and volunteers.
4.3 Professional Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for licensed
professionals performing the Services pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or
self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
b. Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no
later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after the expiration or termination of this
Agreement or completion of the Services, so long as commercially available at
reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that precedes the Effective
Date of this Agreement, Consultant must provide extended reporting coverage for
a minimum of five (5) years after the expiration or termination of this Agreement
or the completion of the Services. Such continuation coverage may be provided by
one of the following: (1) renewal of the existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroactive date no later
than the commencement of the Services under this Agreement. City shall have the
right to exercise, at Consultant’s sole cost and expense, any extended reporting
provisions of the policy, if Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
10.7.b
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4.4 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this Section is to be
placed with insurers with a Bests’ rating of no less than A:VII and admitted in California.
b. Verification of coverage. Prior to beginning the Services under this
Agreement, Consultant shall furnish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of all
policies, including complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The Certificate of Insurance must include the following reference: FY
2020/21 ON-CALL MARKETING SERVICES (ECONOMIC DEVELOPMENT
DEPARTMENT). The name and address for Additional Insured endorsements, Certificates of
Insurance and Notice of Cancellation is: City of Menifee, 29844 Haun Road, Menifee, CA 92586.
City must be endorsed as an additional insured for liability arising out of ongoing and completed
operations by or on behalf of Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant shall
provide written notice to City within ten (10) working days if: (1) any of the required insurance
policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible
or self insured retention is increased.
d. Additional insured; primary insurance. City and its officers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
the following: liability arising out of the Services performed by or on behalf of Consultant,
including the insured’s general supervision of Consultant; products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles
owned, leased, or used by Consultant in the course of providing the Services pursuant to this
Agreement. The coverage shall contain no special limitations on the scope of protection afforded
to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City
as an additional insured must apply on a primary and non-contributory basis with respect to any
insurance or self-insurance program maintained by City. Additional insured status shall continue
for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
e. Deductibles and Self-insured Retentions. Consultant shall obtain the
written approval of City for the self-insured retentions and deductibles before beginning any of the
Services.
During the term of this Agreement, only upon the prior express written
authorization of the Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
10.7.b
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retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses
and related investigations, claim administration, and defense expenses that is satisfactory in all
respects to each of them.
f. Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated
herein.
g. Variation. The Contract Administrator may, but is not required to, approve
in writing a variation in the foregoing insurance requirements, upon a determination that the
coverage, scope, limits, and forms of such insurance are either not commercially available, or that
City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may, at its sole option, exercise any of the following
remedies, which are alternatives to other remedies City may have and are not the exclusive remedy
for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its officers, employees, officials, volunteers, and agents from and against
any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action
(whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards,
assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and
expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a
defense for City, the legal costs of counsel retained by City) and any judgment (collectively,
“Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error,
or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of professional
services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant shall
indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and
10.7.b
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all of its officers, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for which
Consultant is legally liable, including but not limited to officers, agents, employees or
subcontractors of Consultant.
5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply to
claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5
shall not release City from liability arising from gross negligence or willful acts or omissions of
City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of the Services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City
shall not have the right to control the means by which Consultant accomplishes the Services
rendered pursuant to this Agreement. The personnel performing the Services under this
Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its officers,
employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment by
City, including but not limited to eligibility to enroll in the California Public Employees
Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply
with all applicable local, state, and federal laws and regulations applicable to the performance of
the work hereunder. Consultant shall not hire or employ any person to perform work within City
or allow any person to perform the Services required under this Agreement unless such person is
properly documented and legally entitled to be employed within the United States. Any and all
work subject to prevailing wages, as determined by the Director of Industrial Relations of the State
of California, will be the minimum paid to all laborers, including Consultant’s employee and
subcontractors. It is understood that it is the responsibility of Consultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the California Department of
10.7.b
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Industrial Relations (“DIR”) pursuant to California Public Utilities Code, Sections 465, 466, and
467 by calling 415-703-4774. Appropriate records demonstrating compliance with such
requirement shall be maintained in a safe and secure location at all times, and readily available at
City’s request. Consultant shall indemnify, defend, and hold City and its elected and appointed
boards, members, officials, officers, agents, representatives, employees, and volunteers harmless
from and against any liability, loss, damage, cost or expenses (including but not limited to
reasonable attorneys’ fees, expert witness fees, court costs, and costs incurred related to any
inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any
party performing the Services of any applicable local, state, and/or federal law, including, without
limitation, any applicable federal and/or state labor laws (including, without limitation, the
requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of Section
1781 of the Labor Code, as the same may be amended from time to time, or any other similar law;
and/or (iii) failure by Consultant or any party performing the Services to provide any required
disclosure or identification as required by Labor Code Section 1781, as the same may be amended
from time to time, or any other similar law. It is agreed by the Parties that, in connection with
performance of the Services, including, without limitation, any and all public works (as defined
by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages
under California law and/or the implementation of Labor Code Section 1781, as the same may be
amended from time to time, and/or any other similar law. Consultant acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain
and maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon
written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’
written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be
entitled to compensation for the Services performed up to the date of termination; City, however,
may condition payment of such compensation upon Consultant delivering to City any or all
documents, photographs, computer software, video and audio tapes, and other materials provided
to Consultant or prepared by or for Consultant or City in connection with this Agreement.
10.7.b
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8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of
this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and agrees
that, if City grants such an extension, City shall have no obligation to provide Consultant with
compensation beyond the maximum amount provided for in this Agreement. Similarly, unless
authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by
all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination
of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
professional reputation and competence of Consultant. Consultant may not assign this Agreement
or any interest therein without the prior written approval of the Contract Administrator. Consultant
shall not subcontract any portion of the performance contemplated and provided for herein, other
than to the subcontractors noted in Consultant’s proposal, without prior written approval of the
Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant
shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Consultant
shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the
following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in
Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services
described in Exhibit A that is unfinished at the time of breach and the amount that City
would have paid Consultant pursuant to Section 2 if Consultant had completed the
Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records,
files, or any other documents or materials, in electronic or any other form that Consultant prepares
10.7.b
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or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the
property of City. Consultant hereby agrees to deliver those documents to City upon the expiration
or termination of this Agreement. It is understood and agreed that the documents and other
materials, including but not limited to those described above, prepared pursuant to this Agreement
are prepared specifically for City and are not necessarily suitable for any future or other use. Any
use of such documents for other projects by City shall be without liability to Consultant. City and
Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other
documents are confidential and will not be released to third parties without prior written consent
of both Parties unless required by law.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive and
perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs,
rights of reproduction, and other intellectual property embodied in plans, specifications, studies,
drawings, estimates, test data, survey results, models, renderings, and other documents or works
of authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which
are prepared or caused to be prepared by Consultant under this Agreement (“Documents and
Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-
exclusive and perpetual license for any Documents and Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any
and all Documents and Data. Consultant makes no such representation and warranty in regard to
Documents and Data which were prepared by design professionals other than Consultant or
provided to Consultant by the City. City shall not be limited in any way in its use of the Documents
and Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers,
books of account, invoices, vouchers, canceled checks, and other records or documents evidencing
or relating to charges for the Services or expenditures and disbursements charged to City under
this Agreement for a minimum of three (3) years, or for any longer period required by law, from
the date of final payment to Consultant under this Agreement. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that Section 9.3 of
this Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be
subject to the examination and audit of the State Auditor, at the request of City or as part of any
audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to
10.7.b
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any other relief to which that Party may be entitled; provided, however, that the attorneys’ fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the
litigation. The court may set such fees in the same action or in a separate action brought for that
purpose.
10.2 Applicable Law; Venue. The internal laws of the State of California shall govern
the interpretation and enforcement of this Agreement. In the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affected thereby and all other parts of this Agreement shall
nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. The waiver of any breach of a specific provision of
this Agreement does not constitute a waiver of any other breach of that term or any other term of
this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit
of and shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Representative. All matters under this Agreement shall be handled for
Consultant by Kellie Meehan (“Consultant’s Representative”). The Consultant’s Representative
shall have full authority to represent and act on behalf of Consultant for all purposes under this
Agreement. The Consultant’s Representative shall supervise and direct the Services, using his
best skill and attention, and shall be responsible for all means, methods, techniques, sequences,
and procedures and for the satisfactory coordination of all portions of the Services under this
Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a City
employee, Kayla Charters, Economic Development Analyst (“Contract Administrator”). All
correspondence shall be directed to or through the Contract Administrator or his designee. The
Contract Administrator shall have the power to act on behalf of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
SEARLE CREATIVE GROUP LLC
Attn: Kellie Meehan
1802 Eastman Ave, Suite 111
Ventura, CA 93003
10.7.b
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Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Kayla Charters, Economic Development Analyst
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page of a technical report, first page of design specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and
Signature of Registered Professional with report/design responsibility,” as in the following
example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default
or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either Party by reason of the authorship of
this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of each of
the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement, such Party is formally bound to the provisions of this Agreement, and
(iv) that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
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10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors,
assigns, and all persons claiming under or through them, that in the performance of this Agreement
there shall be no discrimination against or segregation of, any person or group of persons on
account of any impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Party Beneficiaries. With the exception of the specific provisions set
forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event of any default or breach by City or for any amount which may become due to
Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or
pressure is used against or in concert with any officer or employee of City in connection with the
award, terms or implementation of this Agreement, including any method of coercion, confidential
financial arrangement, or financial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of
Consultant, in connection with the award of this Agreement or any work to be conducted as a result
of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee of City,
or their designees or agents, and no public official who exercises authority over or has
responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
10.7.b
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Kellie Meehan, Owner
Kellie Meehan, Chief Financial Officer
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
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EXHIBIT A
EXHIBIT A
SCOPE OF SERVICES
Services shall include, but are not limited to: On Call design work for ads and marketing services
as requested by the Economic development department in the amount not to exceed THIRTY
THOUSAND DOLLARS AND ZERO CENTS ($30,000.00).
Consultant shall provide individual project schedule/cost breakdown to Economic Development
Department staff for review/approval for each activity/project, as requested.
10.7.b
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EXHIBIT A
10.7.b
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CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY 2020/21 ON-CALL CITY OF MENIFEE VIDEO & PHOTOGRAPHY
SERVICES FOR EVENTS AND PROGRAMMING
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective
this _____ day of __________, 2020 (“Effective Date”) by and between the CITY OF MENIFEE,
a California municipal corporation, (“City”) and VISIONARIES IMAGE COMPANY, a Single
member Limited Liability Company (LLC) (“Consultant”). City and Consultant may sometimes
herein be referred to individually as a “Party” and collectively as the “Parties.”
SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated
herein by this reference (the “Services”). Consultant will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. In the event of a conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on July 1, 2020 and
shall end on June 30, 2021 unless the term of this Agreement is otherwise terminated or extended
as provided for in Section 8. The time provided to Consultant to complete the Services required
by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in
Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a
provider of first class work and services and Consultant is experienced in performing the Services
contemplated herein and, in light of such status and experience, Consultant shall perform the
Services required pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Consultant is engaged in the
geographical area in which Consultant practices its profession and to the sole satisfaction of the
Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to
perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons, Consultant
shall, immediately upon receiving notice from City of such desire of City, reassign such person or
persons.
1.4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations
hereunder.
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1.5 Authorization to Perform Services. Consultant is not authorized to perform any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed THIRTY THOUSAND
DOLLARS AND ZERO CENTS ($30,000.00) notwithstanding any contrary indications that
may be contained in Consultant’s proposal, for the Services to be performed and reimbursable
costs incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit
A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant
for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein.
The payments specified below shall be the only payments from City to Consultant for the Services
rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner
specified herein. Except as specifically authorized in advance by City, Consultant shall not bill
City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first
invoice, etc.;
b. The beginning and ending dates of the billing period;
c. A “Task Summary” containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent, and subcontractor of Consultant performing the
Services hereunder necessary to complete the Services described in Exhibit A;
f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
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29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
2.3 Final Payment. City shall pay the last five percent (5%) of the total amount due
pursuant to this Agreement within sixty (60) days after completion of the Services and submittal
to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum
amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred for Services satisfactorily completed and for reimbursable
expenses as of the date of written notice of termination. Consultant shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary for Consultant’s use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and time
of furnishing those facilities shall be in the sole discretion of City. In no event shall City be
required to furnish any facility that may involve incurring any direct expense, including but not
limited to computer, long-distance telephone or other communication charges, vehicles, and
reproduction facilities.
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SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense,
shall procure the types and amounts of insurance checked below and provide Certificates of
Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the
requirements of this section and which is satisfactory, in all respects, to City. Consultant shall
maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not
allow any subcontractor, consultant or other agent to commence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereof to City. Verification of the required insurance shall be submitted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between City and other Insureds.
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions of the California
Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per
accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION
DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only if the program of self-insurance complies
fully with the provisions of the California Labor Code. Determination of whether a self-insurance
program meets the standards of the California Labor Code shall be solely in the discretion of the
Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
4.2 Commercial General and Automobile Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO
MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General
Liability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use of hired, owned, and non-owned automobiles.
b. Minimum scope of coverage. Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
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Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c. Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees, agents,
and volunteers.
4.3 Professional Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for licensed
professionals performing the Services pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or
self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
b. Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no
later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after the expiration or termination of this
Agreement or completion of the Services, so long as commercially available at
reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that precedes the Effective
Date of this Agreement, Consultant must provide extended reporting coverage for
a minimum of five (5) years after the expiration or termination of this Agreement
or the completion of the Services. Such continuation coverage may be provided by
one of the following: (1) renewal of the existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroactive date no later
than the commencement of the Services under this Agreement. City shall have the
right to exercise, at Consultant’s sole cost and expense, any extended reporting
provisions of the policy, if Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
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4.4 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this Section is to be
placed with insurers with a Bests’ rating of no less than A:VII and admitted in California.
b. Verification of coverage. Prior to beginning the Services under this
Agreement, Consultant shall furnish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of all
policies, including complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The Certificate of Insurance must include the following reference: FY
2020/21 ON-CALL CITY OF MENIFEE VIDEO & PHOTOGRAPHY SERVICES FOR
EVENTS AND PROGRAMMING. The name and address for Additional Insured endorsements,
Certificates of Insurance and Notice of Cancellation is: City of Menifee, 29844 Haun Road,
Menifee, CA 92586. City must be endorsed as an additional insured for liability arising out of
ongoing and completed operations by or on behalf of Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant shall
provide written notice to City within ten (10) working days if: (1) any of the required insurance
policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible
or self insured retention is increased.
d. Additional insured; primary insurance. City and its officers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
the following: liability arising out of the Services performed by or on behalf of Consultant,
including the insured’s general supervision of Consultant; products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles
owned, leased, or used by Consultant in the course of providing the Services pursuant to this
Agreement. The coverage shall contain no special limitations on the scope of protection afforded
to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City
as an additional insured must apply on a primary and non-contributory basis with respect to any
insurance or self-insurance program maintained by City. Additional insured status shall continue
for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
e. Deductibles and Self-insured Retentions. Consultant shall obtain the
written approval of City for the self-insured retentions and deductibles before beginning any of the
Services.
During the term of this Agreement, only upon the prior express written
authorization of the Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
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retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses
and related investigations, claim administration, and defense expenses that is satisfactory in all
respects to each of them.
f. Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated
herein.
g. Variation. The Contract Administrator may, but is not required to, approve
in writing a variation in the foregoing insurance requirements, upon a determination that the
coverage, scope, limits, and forms of such insurance are either not commercially available, or that
City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may, at its sole option, exercise any of the following
remedies, which are alternatives to other remedies City may have and are not the exclusive remedy
for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its officers, employees, officials, volunteers, and agents from and against
any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action
(whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards,
assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and
expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a
defense for City, the legal costs of counsel retained by City) and any judgment (collectively,
“Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error,
or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of professional
services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant shall
indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and
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all of its officers, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for which
Consultant is legally liable, including but not limited to officers, agents, employees or
subcontractors of Consultant.
5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply to
claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5
shall not release City from liability arising from gross negligence or willful acts or omissions of
City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of the Services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City
shall not have the right to control the means by which Consultant accomplishes the Services
rendered pursuant to this Agreement. The personnel performing the Services under this
Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its officers,
employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment by
City, including but not limited to eligibility to enroll in the California Public Employees
Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply
with all applicable local, state, and federal laws and regulations applicable to the performance of
the work hereunder. Consultant shall not hire or employ any person to perform work within City
or allow any person to perform the Services required under this Agreement unless such person is
properly documented and legally entitled to be employed within the United States. Any and all
work subject to prevailing wages, as determined by the Director of Industrial Relations of the State
of California, will be the minimum paid to all laborers, including Consultant’s employee and
subcontractors. It is understood that it is the responsibility of Consultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the California Department of
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Industrial Relations (“DIR”) pursuant to California Public Utilities Code, Sections 465, 466, and
467 by calling 415-703-4774. Appropriate records demonstrating compliance with such
requirement shall be maintained in a safe and secure location at all times, and readily available at
City’s request. Consultant shall indemnify, defend, and hold City and its elected and appointed
boards, members, officials, officers, agents, representatives, employees, and volunteers harmless
from and against any liability, loss, damage, cost or expenses (including but not limited to
reasonable attorneys’ fees, expert witness fees, court costs, and costs incurred related to any
inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any
party performing the Services of any applicable local, state, and/or federal law, including, without
limitation, any applicable federal and/or state labor laws (including, without limitation, the
requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of Section
1781 of the Labor Code, as the same may be amended from time to time, or any other similar law;
and/or (iii) failure by Consultant or any party performing the Services to provide any required
disclosure or identification as required by Labor Code Section 1781, as the same may be amended
from time to time, or any other similar law. It is agreed by the Parties that, in connection with
performance of the Services, including, without limitation, any and all public works (as defined
by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages
under California law and/or the implementation of Labor Code Section 1781, as the same may be
amended from time to time, and/or any other similar law. Consultant acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain
and maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon
written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’
written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be
entitled to compensation for the Services performed up to the date of termination; City, however,
may condition payment of such compensation upon Consultant delivering to City any or all
documents, photographs, computer software, video and audio tapes, and other materials provided
to Consultant or prepared by or for Consultant or City in connection with this Agreement.
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8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of
this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and agrees
that, if City grants such an extension, City shall have no obligation to provide Consultant with
compensation beyond the maximum amount provided for in this Agreement. Similarly, unless
authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by
all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination
of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
professional reputation and competence of Consultant. Consultant may not assign this Agreement
or any interest therein without the prior written approval of the Contract Administrator. Consultant
shall not subcontract any portion of the performance contemplated and provided for herein, other
than to the subcontractors noted in Consultant’s proposal, without prior written approval of the
Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant
shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Consultant
shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the
following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in
Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services
described in Exhibit A that is unfinished at the time of breach and the amount that City
would have paid Consultant pursuant to Section 2 if Consultant had completed the
Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records,
files, or any other documents or materials, in electronic or any other form that Consultant prepares
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or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the
property of City. Consultant hereby agrees to deliver those documents to City upon the expiration
or termination of this Agreement. It is understood and agreed that the documents and other
materials, including but not limited to those described above, prepared pursuant to this Agreement
are prepared specifically for City and are not necessarily suitable for any future or other use. Any
use of such documents for other projects by City shall be without liability to Consultant. City and
Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other
documents are confidential and will not be released to third parties without prior written consent
of both Parties unless required by law.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive and
perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs,
rights of reproduction, and other intellectual property embodied in plans, specifications, studies,
drawings, estimates, test data, survey results, models, renderings, and other documents or works
of authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which
are prepared or caused to be prepared by Consultant under this Agreement (“Documents and
Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-
exclusive and perpetual license for any Documents and Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any
and all Documents and Data. Consultant makes no such representation and warranty in regard to
Documents and Data which were prepared by design professionals other than Consultant or
provided to Consultant by the City. City shall not be limited in any way in its use of the Documents
and Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers,
books of account, invoices, vouchers, canceled checks, and other records or documents evidencing
or relating to charges for the Services or expenditures and disbursements charged to City under
this Agreement for a minimum of three (3) years, or for any longer period required by law, from
the date of final payment to Consultant under this Agreement. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that Section 9.3 of
this Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be
subject to the examination and audit of the State Auditor, at the request of City or as part of any
audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to
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any other relief to which that Party may be entitled; provided, however, that the attorneys’ fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the
litigation. The court may set such fees in the same action or in a separate action brought for that
purpose.
10.2 Applicable Law; Venue. The internal laws of the State of California shall govern
the interpretation and enforcement of this Agreement. In the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affected thereby and all other parts of this Agreement shall
nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. The waiver of any breach of a specific provision of
this Agreement does not constitute a waiver of any other breach of that term or any other term of
this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit
of and shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Representative. All matters under this Agreement shall be handled for
Consultant by Trescher Catron, Owner (“Consultant’s Representative”). The Consultant’s
Representative shall have full authority to represent and act on behalf of Consultant for all purposes
under this Agreement. The Consultant’s Representative shall supervise and direct the Services,
using his best skill and attention, and shall be responsible for all means, methods, techniques,
sequences, and procedures and for the satisfactory coordination of all portions of the Services
under this Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a City
employee, Kayla Charters, Economic Development Analyst (“Contract Administrator”). All
correspondence shall be directed to or through the Contract Administrator or his designee. The
Contract Administrator shall have the power to act on behalf of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
VISIONARIES IMAGE COMPANY
Attn: Trescher Catron, Owner
4263 S. Glacier Trail
Ontario, CA 91762
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Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Kayla Charters, Economic Development Analyst
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page of a technical report, first page of design specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and
Signature of Registered Professional with report/design responsibility,” as in the following
example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default
or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either Party by reason of the authorship of
this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of each of
the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement, such Party is formally bound to the provisions of this Agreement, and
(iv) that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
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10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors,
assigns, and all persons claiming under or through them, that in the performance of this Agreement
there shall be no discrimination against or segregation of, any person or group of persons on
account of any impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Party Beneficiaries. With the exception of the specific provisions set
forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event of any default or breach by City or for any amount which may become due to
Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or
pressure is used against or in concert with any officer or employee of City in connection with the
award, terms or implementation of this Agreement, including any method of coercion, confidential
financial arrangement, or financial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of
Consultant, in connection with the award of this Agreement or any work to be conducted as a result
of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee of City,
or their designees or agents, and no public official who exercises authority over or has
responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Trescher Catron, Owner
Trescher Catron, Chief Financial Officer
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
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EXHIBIT A
EXHIBIT A
SCOPE OF SERVICES
Services shall include, but are not limited to: On Call Marketing Video Production Services in the
amount not to exceed THIRTY THOUSAND DOLLARS AND ZERO CENTS ($30,000.00).
Marketing videos, shall include, but are not limited to, events/activities, such as:
City of Menifee State of the City Video (highlighting the City’s annual accomplishments)
Recruitment, community outreach, education videos
Special events, programs etc.
Consultant shall provide individual project schedule/cost breakdown to Economic Development
Department staff for review/approval for each activity/project.
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EXHIBIT A
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CITY OF MENIFEE
SUBJECT: Menifee Valley Chamber of Commerce MOU
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Kayla Charters, Management Analyst
REVIEWED BY: Jeff Wyman, Assistant City Manager
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Approve a Resolution, updating the list of activities, information and training programs, events,
and promotional products in connection with the Menifee Valley Chamber of Commerce.
DISCUSSION
Staff has successfully collaborated with the Menifee Valley Chamber of Commerce (“Chamber”)
to coordinate events, additional positive marketing of the City, and business related programs
and services year after year, and together - continues to make positive impacts on the residents
and business communities. The primary purpose of the partnership with the Chamber is to
enable the City to continue to leverage its resources by utilizing Chamber staff to augment city
staff. The partnership will allow the City to continue to focus on its core objectives, while
increasing services and programs to the community, and assist the Chamber while it aims to
grow and expand their reach.
The City of Menifee Economic Development Department has revised priorities for the
department to align the City of Menifee’s Comprehensive Economic Development Strategy
(CEDS). As a result, the task items listed on the Chamber Memorandum of Understanding
(MOU) performance-based contract have been revised to align with the strategies outlined in
the CEDS. The revisions included removing several events that were not aligned with
department strategies, combining task items to consolidate efforts, or enhancing funding for
items that would directly benefit strategies listed within the CEDS.
The City Council approved a Memorandum of Understanding (“MOU”) on August 21, 2013, with
the Menifee Valley Chamber of Commerce (“Chamber”), to further enhance outreach efforts
with the Menifee business community. The existing MOU indicates the agreement shall
automatically renew annually with the adoption of the City’s annual budget and with the
adjustment of the “Attachment” to the MOU, unless terminated. Economic Development,
Community Services staff, and the Chamber, have negotiated to obtain an update of
Attachment A-1 (Economic Development Department) and Attachment A-2 (Community
10.8
Packet Pg. 164
City of Menifee Staff Report
Menifee Valley Chamber of Commerce MOU
July 15, 2020
Page 2 of 2
Services Department) to reflect various activities, information programs, training programs,
events, and promotional products and services during fiscal year 2020-2021.
Attachment A-1, as it relates to the Economic Development Department, includes the following:
Industry Specific Summits/Mayor’s Roundtables (4 events) (tied to the CEDS)
State of the City
Broker’s Luncheon (tied to the CEDS)
Menifee Munch/Workshops for Businesses (tied to the CEDS)
Job Fair (2 events) (tied to the CEDS)
Menifee K.E.E.P Business Walkabout (tied to the CEDS)
Innovation Month Event
ICSC Attendance (tied to the CEDS)
City Sponsorships/Misc.
Attachment A-2, as related to the Community Services Department, includes the following:
Partnership on the Independence Day Celebration for FY 20/21
This is an opportunity to continue the great partnership with the Chamber, and staff
recommends to approve the attachments as part of the existing MOU with the Chamber, further
enhancing outreach efforts with the Menifee business community. Additionally, while many
departments in the City, like the Economic Development Department, were required to make
serious budget cuts due to the COVID-19 pandemic and business shut-downs, the Economic
Development Department is recommending to the City Council to maintain the Chambers
existing funding allocation of FY 19/20, $45,000 for FY 20/21, and is not proposing any
decreases or increases in cost for the performance based agreement. Staff felt that it was
extremely important to ensure that the small business community continue to receive important
support and services provided by the Chamber through the City’s partnership, especially once
the recovery process begins after the pandemic.
FISCAL IMPACT
The total cost of the Memorandum of Understanding Amendment A-1, for Fiscal Year 2020-
2021, shall not exceed $45,000. Funding for this item was included in the Fiscal Year 2020-21
Economic Development Department budget (Acct. No. 100-4350-52801). In reference to
Attachment A-2, there are no associated expenditures or revenues being requested at this time
for Fiscal Year 2020-2021.
ATTACHMENTS
1. Original MOU
2. Chamber MOU Resolution
3. Attachment A-1
4. Attachment A-2
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Packet Pg. 166 Attachment: Original MOU (2550 : Menifee Valley Chamber of Commerce MOU)
10.8.a
Packet Pg. 167 Attachment: Original MOU (2550 : Menifee Valley Chamber of Commerce MOU)
10.8.a
Packet Pg. 168 Attachment: Original MOU (2550 : Menifee Valley Chamber of Commerce MOU)
10.8.a
Packet Pg. 169 Attachment: Original MOU (2550 : Menifee Valley Chamber of Commerce MOU)
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE, CALIFORNIA,
APPROVING AN UPDATE OF ACTIVITIES, INFORMATION PROGRAMS, TRAINING
PROGRAMS, EVENTS, AND PROMOTIONAL PRODUCTS IN CONNECTION WITH THE
MENIFEE VALLEY CHAMBER OF COMMERCE
WHEREAS, on August 21, 2013 the Menifee City Council (“Council”) approved a
Memorandum of Understanding (“MOU”) with the Menifee Valley Chamber of Commerce
(“Chamber”) to encourage and facilitate businesses, business related services, and programs
within the City of Menifee (“City”).
WHEREAS, section D. Term of the MOU provides the agreement shall be in effect for
fiscal year 2020-2020 and shall automatically renew annually with the adoption of the City’s
annual budget and adjustment of Attachment A which provides for the activities, information
programs, training programs, events and promotional products for the upcoming fiscal year and
the respective contribution from the City.
WHEREAS, the fiscal year 2020-2021 Adopted Program Budget for the Economic
Development Department includes an amount of FORTY FIVE THOUSAND Dollars ($45,000) for
activities, information programs, training programs, events and promotional products as provided
in the MOU.
WHEREAS, the Chamber has updated the attachment (attached as Exhibit A-1 & A2
to this Resolution) to reflect activities, information programs, training programs, events and
promotional products for fiscal year 2020-2021 in an amount not-to-exceed FORTY FIVE
Thousand Dollars ($45,000).
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Menifee,
California, does resolve, declare, determine and order that the City is authorized to approve
Exhibit A-1 & A-2 of the Resolution for fiscal year 2019-2020.
BE IT FURTHER RESOLVED AND DETERMINED, that the City Manager of the City
of Menifee or his designee, is authorized to monitor the activities of the Chamber outlined in
Exhibit A-1 & A-2 of the Resolution.
PASSED, APPROVED AND ADOPTED ON this 15 day of July, 2020.
____________________________
Bill Zimmerman, Mayor
ATTEST:
____________________________
Sarah A. Manwaring, City Clerk
APPROVED AS TO FORM:
_____________________________
Jeffrey T. Melching, City Attorney
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Packet Pg. 170 Attachment: Chamber MOU Resolution [Revision 1] (2550 : Menifee Valley Chamber of Commerce MOU)
List of Chamber Provided Services FY 19/20 FY 20/21
Industry Specific Summits
(Four events) $8,000
Mayor’s Roundtable $2,000 (Revised to Summits)
Visionary Membership $7,500 $7,500
State of the City $3,500 No Cost
MVCC Administration $4,000 $2,000
Economic Forecast Event $4,500 (removed)
Menifee Monthly Coffees (4-coffee w/
Entrepreneur) $2,000 No Cost
Broker’s Luncheon $5,000
Workshops for Businesses/Menifee
Munch (all speakers must be business
impact survey/ Keep results)
$4000 $4,000
Job Fair & Tech Expo (2) $2,500 (1) $4,500 (2)
Business Survey & Annual Report
(KEEP Business Walk) $5,000 $5,000
Loans For Small Business EXPO $2,000 (removed)
Innovation Month Event $2,000 $2,000
Passport to Menifee (Shop Local
Initiative) $5,000 No Cost
Manufacturing Day $500 No Cost
Menifee Munch $500 No Cost
ICSC Attendance (Ex. Dir. Only) $2,000
City Sponsorships/Misc. $5,000
Total Budgeted Contribution $45,000 $45,000
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Packet Pg. 171 Attachment: Attachment A-1 [Revision 1] (2550 : Menifee Valley Chamber of Commerce MOU)
Resolution No. 17-
ATTACHMENT A-1
Menifee Valley Chamber of Commerce activities, information programs,
training programs, events and promotional products
2020-2021 Outcomes
The following is a listing of activities, information programs, training programs, events and
promotional products. Adjustments to individual line item contributions made during the course
of the fiscal year may be made as long as the total contract dollar amount is not exceeded.
List of Chamber Provided Services Funding City Task Items
Industry Specific Summits (4 Meetings spread out throughout
the year)
Host 4, industry summits/networking events aligned with
targeted industries from the City of Menifee’s CEDS
o Medical
o Advanced Manufacturing
o Technology Focused
o Local-Serving (Retail, Entertainment,
Restaurants)
Collaborate together to produce a high-quality event
Invite attendees 4 weeks in advance of each event by
verbal and written invitations
Collect RSVP’s and follow-up on those who did not
RSVP, and share with the City 2-weeks and 1-week
prior
Arrive at event 1 hour early for set-up
Provide high-quality Breakfast (goal is for a hot
breakfast, can be offset by sponsorship by Chamber)
Provide confirmed attendee list to city staff 5 days in
advance
Search for new invitees from outside areas to the event
Provide weekly updates to city staff on attendees
Host event day-of
Chamber Executive to welcome attendees at beginning
of each roundtable, then turn over to city staff and/or
Mayor to proceed
Assist clean-up following event
Chamber President/CEO or Board of Director to host
meeting
$ 8,000
Provide topics to
Chamber in
sufficient time to
prepare
Prepare
Presentation from
the Economic
Development
Department
Coordinate City
Council Attendance
Create Flyer
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Packet Pg. 172 Attachment: Attachment A-1 [Revision 1] (2550 : Menifee Valley Chamber of Commerce MOU)
Visionary Membership
Chairman’s Circle Membership Plaque
1 Booth Business Expo
1 Table Business Awards/Installation Dinner
2 Foursomes at our Annual Patriots Cup Golf
Tournament
VIP & 3 Tables at the State of the City Event
1 Booth Mega Mixer
Waived Fee to Host Mixer
Special Recognition at Business Awards
Logo on Website and Chairman’s Circle Banner
Logo on Email Footer for Menifee Valley Chamber
Banner Ad- Large Slideshow
Access to Our Menifee Chambers Members Plus+ App
& Enhanced Package in Chamber Master
Ability to Send Push Notifications to All Menifee Valley
Chamber Members
Prominent Listing at all Chamber Special Event
Programs
$ 7,500
Broker’s Luncheon
Book and purchase venue for the event
Collaborate with City
Assist with set-up and clean-up
Host and purchase lunch for the event
$5,000
MVCC Administration
To be defined in meeting to create scope of work /
nothing currently in writing as to scope of work required
Attend SWCLC monthly meetings and report back to city
and Chamber as to bills affecting businesses
Attend regular city council meetings
Send out notices of city partnering with businesses and
Chamber for business events or projects
Send to membership Cal Chamber Legislative Updates
on website or as received, not less than monthly
Attend annual Cal Chamber conference as budget
provides, and make appointments with local legislators
Attend EDC meetings in the district as time permits, but
not less than 4 yearly
Promote legislative and business advocacy
$ 2,000
Workshops for Businesses/ Menifee Munch (4 workshops must
be from Menifee KEEP Results)
Notify City of workshops so City can promote in
advance, 4 weeks
Work with the City to select workshop topics
$4,000 Assist with
promotion of events
10.8.c
Packet Pg. 173 Attachment: Attachment A-1 [Revision 1] (2550 : Menifee Valley Chamber of Commerce MOU)
Organize, coordinate, and promote up to 4 business to
business workshops
Obtain venue and speakers / presenters for each
workshop
Use info from survey of business needs if possible
Job Fair & Tech Expo (2)
Put on 2 Menifee Job Fairs
Organize, coordinate and promote 2 Job Fairs
Obtain venue, supplies, speakers / presenters
City to have a table
City listed as co-host
$4,500
Business Survey & Annual Report
Survey businesses in Menifee, work with City to develop
questions/survey and amount of businesses
Identify businesses interested in expansion
Share results with City
Produce a list to provide to City with contact info
Create, distribute and provide results, and report, of the
needs and challenges of home based businesses
$5,000
Innovation Month Event
Host an event, in partnership with the City in the Month
of April focused around innovation and Entrepreneurs
Start planning in February
$2,000
ICSC Attendance
Pay for ICSC travel expenses $2,000
City Sponsorships
Flexibility for new and innovative programs, outreach
and events
$5,000
Total Budgeted Contribution 2020-21 $45,000
10.8.c
Packet Pg. 174 Attachment: Attachment A-1 [Revision 1] (2550 : Menifee Valley Chamber of Commerce MOU)
A. The Chamber and the City have previously worked together to put on signature
special events for the residents of the City of Menifee to enhance the quality of life
and vibrancy of the City.
B. The City sees participation of Chamber activities as an investment that benefits all
the residents of the community by encouraging the participation of local business
and beer vendors at city-wide special events throughout the year.
C. The Chamber finds the partnership and support of the City in its city-wide special
events to be a positive force and an advantageous opportunity enabling local
businesses and food vendors to thrive by providing public venues and/or special
events where they can showcase their product and services to the community.
D. The Parties desire to enter into an agreement regarding the following events:
Independence Celebration:
o Beer Garden only
o No revenue split, Chamber retains all revenue
o City requests Chamber assistance in obtaining event sponsorships.
Assistance will pertain to dissemination of flyers/video only.
10.8.d
Packet Pg. 175 Attachment: Attachment A-2 [Revision 1] (2550 : Menifee Valley Chamber of Commerce MOU)
Menifee Valley Chamber of Commerce is responsible for the following costs and
logistics relating to the Beer Garden at the Independence Celebration event on
Saturday, June 26, 2021:
Fencing to enclose the Beer Garden
All necessary certificates, licenses, etc necessary to operate Beer Garden
Security Guards (ID checks, and activity related to the Beer Garden).
Portable toilet and wash station inside Beer Garden
Minimum of three sanitation stations separate from hand wash stations and toilet
Ice for Beer Vendors
1 generator –power ice if necessary
Lighting
Fencing and decorations consistent with event themes
mood lighting as needed
Tables and chairs for guests / vendors in beer garden
Cups and affiliated supplies that Beer Garden vendors will require
Signage and branding for Chamber and Beer Garden Vendors
Complete beer garden set up by 12:00pm per inspection guidelines from Cal-Fire
Shared cost of Menifee Police Department support – two dedicated deputies
for Beer garden.
Any Federal, State, County, or local guidelines related to Social Distancing, capacity,
and or additional cleaning measures must be adhered to. A comprehensive
checklist will be provided by City staff in collaboration with local Public Health
Officials
Clean up of Beer Garden area to include removal of trash
10.8.d
Packet Pg. 176 Attachment: Attachment A-2 [Revision 1] (2550 : Menifee Valley Chamber of Commerce MOU)
CITY OF MENIFEE
SUBJECT: Inland Empire Small Business Development Center MOU
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Kayla Charters, Management Analyst
REVIEWED BY: Jeff Wyman, Assistant City Manager
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Approve a Memorandum of Understanding (MOU) Agreement between the City of Menifee and
the Inland Empire Small Business Development Center for Menifee small business consulting
services, and space of use at the Menifee City Hall.
DISCUSSION
The City of Menifee has partnered with the Inland Empire Small Business Development Center
(SBDC) for several years bringing business consulting services to Menifee’s small businesses
community and entrepreneurs at no cost to the business community, as a way to encourage,
support, retain and grow industry, businesses, and start-ups in the City of Menifee. The SBDC
has been a critical partner in Menifee’s economic development efforts, as the services SBDC
offers have been an added benefit when attracting prospective businesses, and supporting the
small business ecosystem within the City.
The SBDC offers a wide variety of consulting services, at no-charge to the client, including but
not limited to, assistance in the following areas:
Business Planning
Loan Proposals
Business Assessments
Finance
Bookkeeping
Taxes and Licenses
Marketing and Social Media
Business Management
Human Resources
Government Procurement Procedures
10.9
Packet Pg. 177
City of Menifee Staff Report
IE Small Business Development Center (SBDC) MOU
July 15, 2020
Page 2 of 2
In addition, through a yearly agreement with the City, SBDC holds four workshops in Menifee
and offered free to Menifee Businesses. As additional funding becomes available, the SBDC
has increased workshops to 14 per year, from grants received by the SBDC/SBA, with most
workshops being held at the Menifee City Hall. These workshops are offered to Menifee
businesses, at no cost, and the courses are tied to the City’s small business impact surveys and
Comprehensive Economic Development Survey (CEDS). Virtual consultations are currently
available amid the COVID-19 pandemic, until SBDC resumes in-house services.
Due to the COVID-19 pandemic, it is vital that the City of Menifee makes business resources
more accessible to support the small business community. As part of the Menifee CARES
initiative, the City of Menifee has proactively secured a location on-site for SBDC to be housed
at the Menifee City Hall in the Economic Development Department, as a pilot and as space
permits, in an effort to provide additional business resources to Menifee businesses to assist in
the recovery efforts from the pandemic. SBDC consultant will go from twice a month onsite
housed at the Chamber office, to Monday through Friday hours housed at the Menifee City Hall,
as the Chamber is not able to house the SBDC full-time with limited space. The full-time in-
person hours are pending, until the SBDC resumes back to in-office hours again and contingent
of funding and demand by businesses, and offered the opportunity to utilize conference room
space to meet with Menifee businesses or potential Menifee businesses for consultations.
SBDC is currently working remotely, but is available to businesses virtually to offer any of the
services noted above and regularly scheduled workshops.
Staff recommends to approve MOU between the Inland Empire Small Business Development to
continue united efforts to assist the Menifee business community, and enhance the availability
of resources offered to Menifee businesses to retain, and grow existing businesses, and expand
ones looking to make Menifee their new home, or assist start-ups/entrepreneurs. There is no
additional cost to the City for housing SBDC at City Hall or adding additional consultation hours,
or adding additional workshops for businesses. The costs for the agreement remains $13,000
and is commensurate with past budget years. The agreement is within the City Manager’s
signing authority; however, staff is bringing the MOU forward to City Council for consideration,
because of the shared facility use component of the MOU agreement.
FISCAL IMPACT
The fiscal impact of the MOU with the SBDC is $13,000 for FY 20/21, which is in the City
Manager’s signing authority, has been budgeted within the Economic Development Budget
account 100-4350-52800. The agreement with the SBDC for FY 20/21 is commensurate with
past years, and there is no cost to the city for the additional consultation hours with the SBDC,
aside from the space being afforded to the SBDC by the City for FY 20/21. SBDC and the City
partner on grant applications to receive funding for additional workshops, and to cover the costs
of additional consultation hours for a SBDC representative in the City of Menifee.
ATTACHMENTS
1. SDBC Use of Space Agreement
10.9
Packet Pg. 178
SPACE USE MEMORANDUM OF AGREEMENT
This Space Use Memorandum of Agreement (“MOU”) is entered into as of the __ day of
______, 2020, by and between the City of Menifee, a California municipal corporation (“City”),
and the University Enterprises Corporation at CSUSB for itself and on behalf of Inland Empire
Small Business Development Center (“SBDC”).
1. Right to Use Subject Property.
A. City hereby grants a license to SBDC to use the City of Menifee designated
space within the Site, described in Exhibit “A”, attached hereto and incorporated herein (hereafter
referred to as “Subject Property”)attached hereto and incorporated herein, subject to the terms
and conditions of this MOU.
City hereby grants a license to SBDC to use a designated space (“Site”) within the City Hall of the
City of Menifee (“Subject Property”), as described in Exhibit A, attached hereto and incorporated
by this reference.]
2. Term of License to Use Subject Property and Common Areas.
A. Duration. The term of this MOU shall be twelve (12) months, commencing on
July 1, 2020 ending on June 30, 2021, subject to the extension of the term as provided in
Subsection C (Notice of Desire to Extend Term) .
B. Right to Terminate MOU. Either party may terminate this MOU for any reason
by providing a sixty (60) day prior written notice of termination to the other party at the addresses
shown in Section 5 (Notice), below.
C. Notice of Desire to Extend Term. On or before May 1, 2021, SBDC shall give
written notice to City at the address shown in Section 5 (Notice), below of SBDC’s desire to further
extend the Term of this MOU for one (1) additional year through June 30, 2022. The Term shall
be extended for one (1) additional year through June 30, 2022 only if such extension is approved
by the City Manager in writing. Nothing in this section shall be construed as an obligation of City
to extend the Term, nor shall it be construed as granting SBDC any option to extend the Term,
regardless of whether or not SBDC provides the notice described herein.
D. Notwithstanding any other provision of this Section 2, the failure of SBDC to
comply with the terms of this MOU or any written directions by or on behalf of City issued pursuant
hereto shall constitute a material breach hereof, and this MOU may be terminated immediately.
City’s failure to exercise this right of termination shall not constitute
E. e waiver of such right, which may be exercised at any subsequent time.
3. Responsibilities of SBDC.
A. SBDC shall have access to the Site, with one cubicle, computer screen, and
computer and internet, and the use of conference room space, in accordance with City Hall
reservation system for all of City Hall - subject to availability, at the Subject Property from 9:00
a.m. until 5:00 p.m., Monday through Friday contingent on market demand and available
funding.
10.9.a
Packet Pg. 179 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
B. SBDC shall provide the following types of assistance to businesses in
Southwest Riverside County:
i. Business planning;
ii. Loan proposals;
iii. Business assessments;
iv. Finance;
v. Bookkeeping;
vi. Taxes and licenses;
vii. Marketing;
viii. Business management;
ix. Human resources; and
x. Governmental procurement procedures
C. SBDC shall be responsible for the following duties, as part of its mentorship
program for the benefit of City of Menifee businesses or prospective businesses interested in
locating in Menifee:]
i. Meet with City of Menifee businesses and review business
milestones;
ii. Provide advice to City of Menifee Clients, highlighting areas
needing improvement, such as company leadership, business
strategy, financing requirements and strategies, communications,
company organization, work product;
iii. Assist City of Menifee Clients in designing a strategic business plan
charting growth and milestones in those areas that require
improvement; and
iv. Report monthly progress of City of Menifee businesses and
prospective businesses to the Economic Development Department.
D. The Center also will offer 4 seminars locally during the term of this agreement
on business-related topics. The topics and fees to be charged for these seminars are to be
determined in consultation with the City of Menifee. SBDC shall work with the City of Menifee and
the Menifee Chamber of Commerce for marketing resources.
E. SBDC shall identify the City of Menifee as co-sponsors of SBDC’s programs.
F. SBDC shall have access to use City of Menifee conferencing spaces through
the City’s room reservation system, subject to availability as determined by City Hall reservation
procedures.
G. SBDC shall not make any modifications to the interior or exterior of the Subject
Property, office space, conference room, or City equipment, computer or internet, and must
comply with all City required usage agreements
H. SBDC shall repair any and all damage beyond normal wear and tear to City’s
real and personal property arising out of any SBDC activity on the Subject Property.
10.9.a
Packet Pg. 180 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
I. SBDC shall not assign, sell, or transfer its interest under this MOU without the
express prior written approval and consent of City. Any attempted assignment, sale, or transfer in
violation of this subsection shall be void.
4. Responsibilities of City.
A. City shall be responsible for providing the interior furniture, fixtures, and
equipment for the interior of the cubicle, conference space subject to availability, computer
equipment and internet in cubicle located on the Site.
B. City shall be responsible for providing and maintaining wireless internet service
for use by the SBDC at the Site. City shall not be responsible for intermittent wireless internet
outages that occur through no fault of City.
C. City shall be responsible for the installation and maintenance of security
systems and fire alarm systems. City shall not be responsible for intermittent security systems
and fire alarm outages that occur through no fault of City.
D. City shall be responsible for maintaining, by providing custodial services for,
the interior of the buildings located at the Site in a neat, clean, and safe condition.
E. City shall provide all landscape maintenance services to the exterior of any
buildings located at the Subject Property.
F. City shall be responsible for all maintenance and repairs for the exterior of any
buildings located at the Subject Property, including roofing, HVAC, the parking lot, and exterior
lighting.
G. City shall be responsible for the costs of utilities, including water, gas, and
electricity at the Subject Property.
H. City shall provide Economic Development Funding in the amount of $13,000
which will be allocated to pay for a workshop to be held every other month, consulting services,
and provide a hub of services for the community in one convenient location for Fiscal Year
2020/2021.
5. Notice
All notices which shall or may be given under this MOU shall be in writing and
delivered personally or transmitted: (i) through the United States mail, by registered or certified
mail, postage prepaid; or (ii) with prepaid overnight delivery service, the Parties at the following
addresses:
City: City of Menifee
Attention: Economic Development Department
29844 Haun Road
Menifee, CA 92586
SBDC: Paul Nolta
Inland Empire Small Business Development Center
1650 Spruce Street, Suite 500
10.9.a
Packet Pg. 181 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
Riverside, CA 92507
6. Relationship of the Parties
This MOU is not intended, and shall not be construed, to create the relationship of
agent, servant, employee, partnership, joint venture, or association as between City and SBDC.
SBDC understands and agrees that all persons furnishing services pursuant to this MOU are, for
purposes of Workers Compensation liability, employees solely of SBDC and not of City. SBDC
shall bear the sole responsibility and liability for furnishing Workers’ Compensation benefits to any
person for injuries arising from or connected with services performed on behalf of SBDC pursuant
to this MOU.
7. Indemnification and Insurance
A. SBDC agrees to indemnify, defend and hold harmless City, its elected and
appointed officers, employees, and agents (collectively hereinafter, “City Parties”) from and
against any and all liability and expense, including defense costs and legal fees, arising from or
connected with claims and lawsuits for damages relating to SBDC’s operations or its services,
which result from bodily injury, death, personal injury, or property damage (including property
owned by or in the case, custody or control of SBDC).
B. Before beginning any work under this Agreement, Consultant, at its own cost
and expense, shall procure the types and amounts of insurance checked below and provide
Certificates of Insurance, indicating that Consultant has obtained or currently maintains insurance
that meets the requirements of this section and which is satisfactory, in all respects, to City.
Consultant shall maintain the insurance policies required by this section throughout the term of
this Agreement. The cost of such insurance shall be included in Consultant’s compensation.
Consultant shall not allow any subcontractor, consultant or other agent to commence work on any
subcontract until Consultant has obtained all insurance required herein for the subcontractor(s)
and provided evidence thereof to City. Verification of the required insurance shall be submitted
and made part of this Agreement prior to execution. Consultant acknowledges the insurance
policy must cover inter-insured suits between City and other Insureds.
C. Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions of the California
Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per
accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION
DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only if the program of self-insurance complies
fully with the provisions of the California Labor Code. Determination of whether a self-insurance
program meets the standards of the California Labor Code shall be solely in the discretion of the
Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
10.9.a
Packet Pg. 182 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
D. Commercial General and Automobile Liability Insurance.
1) General requirements. Consultant, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the Services contemplated by this Agreement,
TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General
Liability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services
to be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use of hired, owned, and non-owned automobiles.
2) Minimum scope of coverage. Commercial general coverage shall be at
least as broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office
Automobile Liability form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting
the coverage.
3) Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a) The insurance shall cover on an occurrence or an accident basis,
and not on a claims-made basis.
b) Any failure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees,
agents, and volunteers.
E. Professional Liability Insurance.
1) General requirements. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for licensed
professionals performing the Services pursuant to this Agreement in an amount not less than
ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and
omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the
deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000),
it must be approved by City.
2) Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a) The retroactive date of the policy must be shown and must be no
later than the commencement of the Services.
b) Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after the expiration or termination of this
10.9.a
Packet Pg. 183 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
Agreement or completion of the Services, so long as commercially available at
reasonable rates.
c) If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that precedes the Effective
Date of this Agreement, Consultant must provide extended reporting coverage for
a minimum of five (5) years after the expiration or termination of this Agreement or
the completion of the Services. Such continuation coverage may be provided by
one of the following: (1) renewal of the existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroactive date no later
than the commencement of the Services under this Agreement. City shall have
the right to exercise, at Consultant’s sole cost and expense, any extended
reporting provisions of the policy, if Consultant cancels or does not renew the
coverage.
d) A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
F. All Policies Requirements.
1) Acceptability of insurers. All insurance required by this Section is to be
placed with insurers with a Bests’ rating of no less than A:VII and admitted in California.
2) Verification of coverage. Prior to beginning the Services under this
Agreement, Consultant shall furnish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of all
policies, including complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The Certificate of Insurance must include the following reference: SPACE
USE MEMORANDUM (MOU). The name and address for Additional Insured endorsements,
Certificates of Insurance and Notice of Cancellation is: City of Menifee, 29844 Haun Road,
Menifee, CA 92586. City must be endorsed as an additional insured for liability arising out of
ongoing and completed operations by or on behalf of Consultant.
3) Notice of Reduction in or Cancellation of Coverage. Consultant shall
provide written notice to City within ten (10) working days if: (1) any of the required insurance
policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible
or self insured retention is increased.
4) Additional insured; primary insurance. City and its officers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
the following: liability arising out of the Services performed by or on behalf of Consultant, including
the insured’s general supervision of Consultant; products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles
owned, leased, or used by Consultant in the course of providing the Services pursuant to this
Agreement. The coverage shall contain no special limitations on the scope of protection afforded
to City or its officers, employees, agents, or authorized volunteers. The insurance provided to
City as an additional insured must apply on a primary and non-contributory basis with respect to
any insurance or self-insurance program maintained by City. Additional insured status shall
continue for one (1) year after the expiration or termination of this Agreement or completion of the
Services.
10.9.a
Packet Pg. 184 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
5) Deductibles and Self-insured Retentions. Consultant shall obtain the
written approval of City for the self-insured retentions and deductibles before beginning any of the
Services.
During the term of this Agreement, only upon the prior express written
authorization of the Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is satisfactory
in all respects to each of them.
6) Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated
herein.
7) Variation. The Contract Administrator may, but is not required to, approve
in writing a variation in the foregoing insurance requirements, upon a determination that the
coverage, scope, limits, and forms of such insurance are either not commercially available, or that
City’s interests are otherwise fully protected.
G. Remedies. In addition to any other remedies at law or equity City may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may, at its sole option, exercise any of the following
remedies, which are alternatives to other remedies City may have and are not the exclusive
remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
8. Additional Terms
A. This MOU contains the entire agreement between the parties with respect to
the subject matter hereof. No addition to or alteration of the terms of this MOU, whether by written
or verbal understanding of the parties, their officers, agents, or employees, shall be valid unless
made in the form of a written amendment to this MOU and formally approved and executed by
both parties.
10.9.a
Packet Pg. 185 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
B. SBDC shall comply with all applicable Federal, State, and local laws, rules,
regulations, ordinances, and directives, and all provisions required thereby to be included in this
MOU are hereby incorporated herein by reference.
C. No waiver of a breach of any provision of this MOU by City will constitute a
waiver of any other breach of said provision or of any other provision of this MOU. Failure of
either party to enforce at any time, or from time to time, any provision of this MOU, shall not be
construed as a waiver thereof. No waiver shall be enforced unless said waiver is set forth in
writing.
D. The persons executing this MOU on behalf of each of the parties hereto represent
and warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute
and deliver this MOU on behalf of said party, (iii) by so executing this MOU, such party is formally
bound to the provisions of this MOU, and (iv) that entering into this MOU does not violate any
provision of any other agreement to which said party is bound.
E. No officer, official, employee, agent, representative, or volunteer of City shall be
personally liable to SBDC, or any successor in interest, in the event of any default or breach by City
or for any amount which may become due to SBDC or to its successor, or for breach of any obligation
of City of the terms of this MOU.
F. Nothing in this MOU shall be deemed or otherwise construed as granting any
rights, benefits, or interests to any individual, entity, or body that is not a party to this MOU.
G. SBDC covenants that, by and for itself, its heirs, executors, assigns, and all
persons claiming under or through them, that in the performance of this MOU there shall be no
unlawful discrimination against or segregation of, any person or group of persons on account of
any impermissible classification including, but not limited to, race, color, creed, religion, sex,
marital status, sexual orientation, national origin, or ancestry.
H. The parties agree to make a diligent, good-faith attempt to resolve any claim,
controversy, or dispute arising out of this MOU.
I. This MOU shall be governed by the internal laws of the State of California
without regard to principles of conflicts of law. The Municipal and Superior Court of the County
of Riverside shall have exclusive jurisdiction over any litigation between the parties hereto
concerning this MOU.
J. This MOU may be executed in counterparts, each of which, when this MOU has
been signed by all the parties hereto, shall constitute an original.
IN WITNESS WHEREOF, the parties have caused this MOU to be executed by their duly
authorized officers and representatives as of the date written at the beginning of this MOU.
10.9.a
Packet Pg. 186 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
Dated: , 2020
“City”
CITY OF MENIFEE, a California municipal
corporation
By: _______________________________
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
______________________________
Attorneys for the City of Menifee
ATTEST:
By: _______________________________
Sarah Manwaring, City Clerk
Dated: , 2020
“SBDC”
Inland Empire Small Business Development
Center
By:
Print Name:__________________________
Its: _________________________________
Dated: , 2020 By:
Print Name:__________________________
Its: _________________________________
10.9.a
Packet Pg. 187 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
EXHIBIT “A”
DESCRIPTION OF SUBJECT PROPERTY AND SITE
The City of Menifee City Hall is the subject of this Memorandum of Understanding and
referenced in Section 1 (Right to Use Subject Property) of this MOU consists of a cubicle and
desk area, on the second floor within the Economic Development Department, of the real
property leased by the City of Menifee located at 29844 Haun Road Menifee, CA 92586.
The Subject Property referenced in Section 1 (Right to Use Subject Property) of this
MOU is the City Hall of the City of Menifee, located at 29844 Haun Road, Menifee, CA 92586.
Within the Subject Property, the Site is located on the second floor within the Economic
Development Department, and includes a cubicle and desk area.
10.9.a
Packet Pg. 188 Attachment: SDBC Use of Space Agreement (2569 : IE Small Business Development Center (SBDC) MOU)
CITY OF MENIFEE
SUBJECT: Adoption of an Ordinance Approving the Junction
Development Agreement No. 2017-291
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Ryan Fowler, Senior Planner
REVIEWED BY: Cheryl Kitzerow, Community Development Director
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Adopt an Ordinance approving The Junction Development Agreement No. 2017-291.
DISCUSSION
At the July 1, 2020 City Council hearing, this Ordinance was introduced for first reading. This is
the required second reading and adoption. The Ordinance will become effective thirty (30) days
from the date of adoption.
FISCAL IMPACT
As previously stated in the July 1, 2020 City Council Staff Report, the Development Agreement
includes a provision for freezing the Development Impact Fees (DIF) for the project for a period
of 7 years. As stated above, the developer would pay 50 percent of any DIF increases between
years 7 and 10 and would pay DIF fees in full after 10 years. The DIF freeze begins at the
Effective Date of the Development Agreement, so it also serves as an incentive to move forward
with the project sooner.
Although the DIF freeze could result in the City receiving less DIF funds over the 10-year period,
the public benefits of the project, such as the expanded contribution to Howard Way ultimate
improvement, expanded storm drain improvements, the early residential development impact
fee, and the Haun Road alignment study, exceeds the amounts the City would anticipate from
any DIF fee increases.
The Development Agreement also include a provision for the City to enter into good faith
negotiations toward a Transient Occupancy Tax (“TOT”) Sharing Agreement with the future
hotel operator and a Sales Tax Sharing Agreement with the future operator of the wholesale
club or big-box anchor store. Both sharing agreements are intended to attract such users to the
City.
10.10
Packet Pg. 189
City of Menifee Staff Report
The Junction
July 15, 2020
Page 2 of 2
ATTACHMENTS
1. Ordinance - Development Agreement
2. Development Agreement
3. RTA Comment Letter
10.10
Packet Pg. 190
ORDINANCE NO. 2020-____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MENIFEE,
CALIFORNIA APPROVING DEVELOPMENT AGREEMENT NO. 2017-
291 BY AND BETWEEN THE CITY OF MENIFEE AND KELCO
PROPERTIES, LLC AND PLATINUM PARTNERS, LLC
WHEREAS, on September 19, 2017, the applicant, PacTen Partners, filed a
formal application with the City of Menifee for the approval of the following: (1) Plot Plan
No. 2017-287, which proposes the construction and operation of the 268,824 sq. ft. of
commercial retail buildings, a 85,282 sq. ft., 5-story hotel, and a two-phase 304-unit
senior assisted living, independent living and memory care facility located on the
northwest corner of Scott Road and Haun Road (APNs: 360-380-002, -007, -009, and -
010) (herein referred to as the “project site”); (2) Conditional Use Permit No. 2017-288,
which would allow for the assisted living facility and gas station uses; and (3)
Development Agreement No. 2017-291, which proposes a Development Agreement
between the Property Owners (Kelco Properties, LLC and Platinum Partners, LLC) and
the City of Menifee (collectively, the “Project”); and
WHEREAS, on June 10, 2020, the Planning Commission of the City of Menifee
held a public hearing on the Project, considered all public testimony as well as all
materials in the staff report and accompanying documents, regarding Development
Agreement No. 2017-291, which hearing was publicly noticed by a publication in The
Press Enterprise, a newspaper of general circulation, an agenda posting, and notice to
property owners and occupants within 900 feet of the Project boundaries, and to persons
requesting public notice; and
WHEREAS, at the June 10, 2020 Planning Commission public hearing, based
upon the materials in the staff report and accompanying documents, public comment,
and Planning Commission discussion, the City of Menifee Planning Commission
recommended that the City Council adopt Development Agreement No. 2017-291; and,
WHEREAS, on July 1, 2020, the City Council held a duly noticed public hearing
concerning the Ordinance, introduced and conducted a first reading of the Ordinance,
and considered testimony and evidence at the public hearing held with respect thereto;
and;
WHEREAS, the Development Agreement has been prepared, processed,
reviewed, heard, and approved in accordance with applicable law, including but not
limited to Section 65864 et seq. of the Government Code; and,
NOW, THEREFORE, the City Council of the City of Menifee does ordain as
follows:
Section 1: Consistency with the General Plan. The proposed development
agreement is consistent with the objectives, policies, general land uses
and programs specified in the general plan and any applicable specific
plan.
Consistency with General Plan
The Project site is designated Economic Development Corridor (EDC) per
the City of Menifee’s General Plan and Zoning map and is intended for a
variety of commercial, entertainment, office and industrial uses.
Specifically, the Project site is located within the EDC: Southern Gateway
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(EDC-SG). The General Plan states that west of Interstate 215, north of
Scott Road, the EDC area provides an opportunity for commercial,
residential, and office uses with a high level of freeway accessibility as a
transitional area to the Town Center located to the north. It instructs to
avoid placement of residential units directly adjacent to the freeway.
The Project is consistent with the EDC-SG land use designation, because
the commercial center and senior living facility will provide commercial
and residential uses as envisioned in the General Plan.
The Project provides services and goods designated to serving patrons
within the vicinity of the Project site as well as those from surrounding
communities. Scott Road and Haun Road are both commercial corridors
within the southerly portion of the City with Interstate 215 paralleling the
site to the east.
In addition, the Development Agreement is consistent with the following
City of Menifee General Plan policies:
Project Design
CD-3.5 Design parking lots and structures to be functionally and
visually integrated and connected; off-street parking lots should not
dominate the street scene.
Perimeter landscaping and of the Project’s commercial and residential
buildings has been provided to visually screen the parking lot and
drive aisles from surrounding roadways along Haun Road, Scott
Road, and Howard Way.
CD-3.9 Utilize Crime Prevention through Environmental Design
(CPTED) techniques and defensible space design concepts to
enhance community safety.
The Project is required to include security cameras at the entrances
as well as within the property and the site has been designed to limit
concealed areas to allow for greater visibility and security.
Building Design
CD-3.10 Employ design strategies and building materials that evoke
a sense of quality and permanence.
The Project includes quality architectural features, such as stone
veneer, wood siding and trim, metal siding, awnings, decorative light
fixture, tower elements, spandrel glass, and standing seam metal
roofing. In addition, the varied color palette creates a warm
environment and ranges from soft reds to gray-toned whites and gray
colored accents, which will complement the more natural earth tones
within the stone veneer.
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CD-3.14 Provide variations in color, texture, materials, articulation,
and architectural treatments. Avoid long expanses of blank,
monotonous walls or fences.
The architecture of the Project incorporates varied colors, recesses,
material changes, varied roof lines, wall plane changes, accent
materials, and other architectural treatments that break up wall areas
to avoid any long expanses of blank, monotonous walls.
Enhanced Landscape Corridors
CD-4.2 Design new and, when necessary, retrofit existing streets to
improve walkability, bicycling, and transit integration; strengthen
connectivity; and enhance community identity through improvements
to the public right-of-way such as sidewalks, street trees, parkways,
curbs, street lighting, and street furniture.
The Project will provide sufficient right-of-way for an expanded 8-foot
sidewalk on Haun Road and standard sidewalks on Howard Way and
Scott Road, parkway, street trees, street lighting and an 8 to 10-foot-
wide Class II bike lane on Scott Road and Haun Road, and a Class
III bike route on Howard Way.
Lighting
CD-6.4 Require that lighting and fixtures be integrated with the
design and layout of a project and that they provide a desirable level
of security and illumination.
The applicant is proposing decorative down-shielded building
mounted lighting, as well as decorative down-shielded free-standing
lighting.
CD-6.5 Limit light leakage and spillage that may interfere with the
operations of the Palomar Observatory.
The Project has been conditioned for all lighting fixtures to comply
with Menifee Municipal Code Chapter 6.01, “Dark Sky Ordinance”,
which will have the effect of limiting leakage and spillage of light. All
lighting is to be down-shielded as described above.
Policies
ED-2.1 Promote retail development by locating needed goods and
services in proximity to where residents live to improve quality of life,
retain taxable spending by Menifee residents and attract residents
from outside the City to shop in Menifee.
o Locate businesses providing convenience goods and services in
retail centers that are on arterials adjacent to neighborhoods and
communities throughout the City but not in rural residential areas.
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o Encourage comparison goods businesses to locate in larger retail
centers located on major arterials near freeway interchanges,
because businesses that provide comparison goods tend to draw
customers from larger areas.
The Project would provide additional retail options and greater
convenience to residential and commercial uses in the Project vicinity.
The Project locates these retail businesses along a major east/west
commercial corridor (Scott Road) and a north/south corridor (Haun Road).
The Project and the properties situated to the north and south of the
project site share the same General Plan and Zoning designation of
Economic Development Corridor (EDC) and Economic Development
Corridor (EDC) – Southern Gateway. The properties to the east are
designated and zoned Menifee Commercial Specific Plan. Properties to
the west are designated Rural Residential – 1 Acre Minimum and 2.1-5
Dwelling Units per Acre – Residential (2.1-5R) and zoned Rural
Residential – 1 Acre Minimum and Low Density Residential – 2 (LDR-2)
(7,200 sq. ft.).
Furthermore, the properties to the north and east are presently vacant.
Properties to the west and south include single-family residences. The
Project is compatible with the surrounding uses it augments and supports
the land uses in the vicinity of the Project.
Consistency with Multiple Specie Habitat Conservation Plan (MSHCP)
The City of Menifee has two (2) active conservation plans within the City’s
boundary, the Western Riverside County MSHCP, and the Stephens’
Kangaroo Rat Habitat Conservation Plan (SKR-HCP). The subject site is
within the jurisdiction of the SKR-HCP and the Western Riverside County
MSHCP. The Project site is located inside the Stephen’s Kangaroo Rat
(Dipodomys stephensi) (SKR) Fee Area. The Project is located within the
boundaries of the Western Riverside County Multiple Species Habitat
Conservation Plan; however, the Project is not located with a Criteria Cell
or Cell Group. The Project will be subject to the payment of fees for a
commercial project consistent with Riverside County Ordinance No. 810.2
as adopted by the City of Menifee. Therefore, the Project will not conflict
with the provisions of the adopted HCP, Natural Conservation Community
Plan, or other approved local, regional, or State conservation plan and the
impact is considered less than significant.
Section 2: Consistency with the Zoning Code. The proposed development
agreement is compatible with the uses authorized in, and the regulations
prescribed for, the zone in which the real property is or will be located.
The Project site is zoned Economic Development Corridor – Southern
Gateway (EDC-SG). Surrounding zoning classifications include EDC-SG
to the north and south, Menifee Commercial Specific Plan to the east and
Rural Residential – 1 Acre Minimum and Low Density Residential – 2
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(LDR-2) (7,200 sq. ft.) to the west, which are consistent with the zoning
for the Project site.
The General Plan Land Use Designation and Zoning classification of
Economic Development Corridor are consistent and compatible with one
another. As previously stated, the General Plan states that west of
Interstate 215, north of Scott Road, the EDC area provides an opportunity
for commercial, residential, and office uses with a high level of freeway
accessibility as a transitional area to the Town Center located to the
north. It instructs to avoid placement of residential units directly adjacent
to the freeway.
This project was deemed complete prior to the current version of the
Development Code (Title 9) became effective (January 17, 2020) and
was therefore reviewed under the previous Development Code.
The Project, which includes a commercial center and senior living facility,
is consistent with the Economic Development Corridor’s list of allowable
uses and the design of the Project is consistent with the development
standard of the EDC-SG zone. Therefore, the Project is consistent with
the Zoning Code.
Section 3: The proposed development agreement is in conformity with and will
promote public convenience, general welfare and good land use practice.
The Project site is located at the northwest corner of Haun Road and
Scott Road. To the north and east of the site if vacant land. To the west
and south of the site is single-family residences and some vacant land.
The Project is compatible with the surrounding land uses, General Plan
land use designations, and zoning classifications and is adequately sized,
shaped, designed and located to accommodate the proposed uses. As
noted above in Sections 1 and 2, the Project includes uses that are
compatible and serve surroundings residents and businesses. The
Project will provide residential uses in the area with additional goods and
service options in the southerly portion of the City. The senior living
facility will also provide services that are not available within the southerly
portion of the City.
The project is compatible with the surrounding land uses, general plan
land use designations and zoning classifications. The project
incorporates quality design, bike lanes/routes, landscaping, amenities,
retail commercial good and services, and other improvements which will
enhance and benefit the area upon construction. The Development
Agreement provides for the orderly construction of road improvements,
utilities, drainage and other improvements. The proposed Development
Agreement is consistent with the concurrent Plot Plan (Plot Plan No.
2017-287) and will assist the developer in implementation of the Plot
Plan. The proposed Development Agreement is in conformity with and
will promote public convenience, general welfare and good land use
practice
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Section 4: Surrounding Uses. The proposed development agreement will not be
detrimental to the health, safety and general welfare within the city.
The Project site is located at the northwest corner of Haun Road and
Scott Road. To the north and east of the site if vacant land. To the west
and south of the site is single-family residences and some vacant land.
The Project is compatible with the surrounding land uses, General Plan
land use designations, and zoning classifications and is adequately sized,
shaped, designed and located to accommodate the proposed uses.
The Project has been reviewed by a variety of Departments to ensure
compliance with applicable regulations, including, but not limited to City of
Menifee Building and Safety, Engineering and Public Works, Riverside
County Fire, Riverside County Sheriff’s Department, and Riverside
County Environmental Health. These Departments have also provided
conditions of approval as appropriate to ensure compliance with
applicable regulations.
In addition, environmental impacts resulting from the Project have been
analyzed in an Addendum to a previous Environmental Impact Report
(i.e., the Junction at Menifee Valley Final Environmental Impact Report
[FEIR]). The Addendum determined that none of the conditions
described in Sections 15162 or 15163 of the CEQA Guidelines calling for
the preparation of a subsequent or supplemental Environmental Impact
Report (EIR) or negative declaration have occurred. The Project will not
generate any new significant environmental effects that were not
previously discussed in the Junction at Menifee Valley FEIR.
Therefore, the Development Agreement is not anticipated to create any
new conditions, not previously discussed in the Junction at Menifee
Valley FEIR, materially detrimental to the public health, safety, and
general welfare or injurious to or incompatible with other properties or
land uses in the Project vicinity.
Section 5: Orderly Development. The proposed development agreement will not
adversely affect the orderly development of the property or the
preservation of property values.
The proposed Development Agreement would assist with and would not
interfere with the development of the Project site and the uses proposed
under Plot Plan No. 2017-287 and Conditional Use Permit No. 2017-288,
which would not adversely affect the orderly development of the
surrounding area. The Development Agreement would not alter the land
uses as adopted in the General Plan. The Development Agreement
would not conflict with surrounding existing and planned land uses and
would not have the potential to adversely affect property values.
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Section 6: Encourage Development. The proposed development agreement will
promote and encourage the development of the proposed project by
providing a greater degree of requisite certainty for the developer.
The assurances provided to the applicant through the Development
Agreement, such as vesting of Development Impact Fees, clarification of
timing of public improvements, and tax sharing would provide greater
certainty, reduced risk, and offset development costs that would
encourage development as approved under the Plot Plan and the
infrastructure associated with it that would serve the surrounding area.
Section 7: Compliance with CEQA. Processing and approval of the permit
application are in compliance with the requirements of the California
Environmental Quality Act.
An Addendum to the Junction at Menifee Valley FEIR was prepared
pursuant to the California Environmental Quality Act (CEQA) for the
Project. In the Addendum, it was found that none of the conditions
described in Sections 15162 or 15163 of the CEQA Guidelines calling for
the preparation of a subsequent or supplemental Environmental Impact
Report (EIR) or negative declaration have occurred. The Project will not
generate any new significant environmental effects that were not
previously discussed in the Junction at Menifee Valley FEIR.
Section 8: Development Agreement Adopted
The City Council approves the Development Agreement set forth in
Exhibit "1" to this Ordinance.
Section 9: The City Manager, or his or her designee, is directed and authorized to do
all of the following:
a. Make all necessary and appropriate clerical, typographical, and
formatting corrections to the adopted Development Agreement
prior to execution and recording; and
b. To implement the Development Agreement, in accordance with its
terms.
Section 10. Recording.
Pursuant to Government Code section 65868.5 and Section 9.45.150 of
the Menifee Municipal Code, the City Clerk shall prepare a final version of
the Development Agreement for recording within ten (10) days of the
Effective Date that fully reflects the action of the City Council in adopting
the Development Agreement.
Section 11: Effective Date.
The Ordinance shall take effect and be in full force and operation thirty
(30) days after its second reading and adoption.
Section 12: Severability.
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If any section, subsection, subdivision, sentence, clause, phrase, or
portion of this Ordinance is, for any reason, held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this
Ordinance. The City Council hereby declares that it would have adopted
this Ordinance, and each section, subsection, subdivision, sentence,
clause, phrase, or portion thereof, irrespective of the fact that any one or
more sections, subsections, subdivision, sentences, clauses, phrases, or
portions thereof be declared invalid or unconstitutional.
Section 13: Notice of Adoption.
The City Clerk is authorized and directed to cause this Ordinance to be
published within fifteen (15) days after its passage in a newspaper of
general circulation and circulated within the City in accordance with
Government Code Section 36933(a) or, cause this Ordinance to be
published in the manner required by law using the alternative summary
and posting procedure authorized under Government Code Section
36933(c).
This Ordinance was introduced and read on the 1st of July, 2020 and PASSED,
APPROVED AND ADOPTED this 15th day of July 2020.
___________________________
Bill Zimmerman, Mayor
Attest:
___________________________
Sarah A. Manwaring, City Clerk
Approved as to form:
___________________________
Jeffrey T. Melching, City Attorney
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PLEASE RECORD AND WHEN RECORDED
RETURN TO:
CITY OF MENIFEE
29844 Haun Road
Menifee, CA 92586
Attn: City Attorney
THE JUNCTION
DEVELOPMENT AGREEMENT
This Development Agreement (hereinafter “Agreement”) is entered into on ______, 2020,
by and between (1) the CITY OF MENIFEE (hereinafter “CITY”), a municipal corporation of the
State of California, and (2) KELCO PROPERTIES, LLC, a California limited liability company
(“KELCO”) and PLATINUM PARTNERS, LLC, a California, limited liability company
(“PLATINUM”) (KELCO and PLATINUM are hereinafter collectively referred to as
“DEVELOPER”).
RECITALS
A. DEVELOPER owns all of the real property described on Exhibit A and depicted
on Exhibit B, consisting of approximately 54.01 gross acres of land area located in the City of
Menifee, County of Riverside, State of California (“Property”).
B. The Planning and Zoning approvals for the Project on the Property obtained prior
to the Effective Date of this Agreement (collectively, the “Development Approvals”) include but
are not limited to the following:
i. Plot Plan No. 2017-287 (“Plot Plan”) proposes the construction of 268,824 sq.
ft. of retail commercial buildings, including a 157,844 sq. ft. anchor building
(“Anchor Building”) with gas station, 123,770 sq. ft., 5-story hotel (135
rooms), and a two-phase 304-unit (390-bed) senior assisted living, independent
living and memory care facility on 54.01 gross acres, adopted by the City
Council of the City of Menifee (“City Council”) on ________________ and
provides the required contents of a Development Plan in compliance with
Government Code section 65865.2. The Plot Plan specifically contemplates
and requires that the retail commercial buildings on the Property would cover
33.11 gross acres of the total Property, and would consist of the following: (i)
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Shops 1 (8,600 sq. ft.); (ii) Shops 2 (9,000 sq. ft.); (iii) Shops 3 (9,900 sq. ft.);
(iv) Shops 4 (6,600 sq. ft.); (v) Shops 5 (10,800 sq. ft.) (with a site plan option
to instead construct a 9,000 sq. ft. facility with a drive through); (vi) Shops 6
(9,600 sq. ft.); (vii) Fitness Center (37,000 sq. ft.); (viii) Pad 1 Restaurant
(7,721 sq. ft.); (ix) Pad 2 Restaurant (5,991 sq. ft.); (x) Pad 3 Restaurant (2,368
sq. ft.); (xi) Pad 4 Restaurant (3,400 sq. ft.); (xii) Anchor Building with gas
station (157,844 sq. ft.). In addition, a hotel will cover 4.29 gross acres of the
Property, a senior living facility will cover 12.88 gross acres of the Property
and will consist of a two-phase 304-unit (390-bed) senior assisted living,
independent living, and memory care facility; the Property consists of a total
of 54.01 gross acres.
ii. Conditional Use Permit 2018-288 (“CUP”) to authorize, subject to the
conditions contained therein, the gas station and senior living uses depicted on
the Plot Plan.
iii. Environmental Clearance Document: The Junction at Menifee Valley
Environmental Impact Report (State Clearinghouse No. 2007041062),
together with an Addendum to the Junction at Menifee Valley Environmental
Impact Report approved by the CITY in June 2020.
Development consistent with all of the Development Approvals and the proposed site plan attached
as Exhibit C-1 is hereinafter referred to as the “Project.”
B. Government Code Sections 65864 et seq. (“Development Agreement Law”)
authorize CITY to enter into binding development agreements with persons having a legal or
equitable interest in real property for the development of such property, all for the purpose of
strengthening the public planning process, encouraging private participation and comprehensive
planning, and reducing the economic costs of such development. DEVELOPER and CITY have
agreed to enter into this Development Agreement in order to memorialize and secure the respective
expectations of the CITY and DEVELOPER.
C. The City Council has found that this Agreement is in the best public interest of the
CITY and its residents. Adopting this Agreement constitutes a present exercise of the CITY’s
police power, and that the Project is consistent with the goals and policies of the CITY’s General
Plan and imposes appropriate standards and requirements with respect to the Development of the
Property in order to maintain the overall quality of life and of the environment within the CITY.
Prior to its approval of this Agreement, CITY considered the environmental impacts of the Project
and completed its environmental review of the Project.
D. On June 10, 2020, the Planning Commission of CITY held a public hearing on the
DEVELOPER’s application for approval of this Agreement, made certain findings and
determinations with respect thereto, and adopted Planning Commission Resolution No. ________,
which recommended to the City Council that this Agreement be approved.
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E. On __________, the City Council held a public hearing on the DEVELOPER’S
application for approval of this Agreement, considered the recommendations of the Planning
Commission, and found that this Agreement is consistent with CITY’s General Plan. On
___________, the City Council introduced Ordinance No. _________, approving this
Development Agreement for first reading. On __________, the City Council approved Ordinance
No. _________, which takes effect as of _______________.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having specific meanings, as
defined below. These specially defined terms are distinguished by having the initial letter
capitalized, or all letters capitalized, when used in the Agreement. The defined terms include the
following:
1.1.1 “Actual Costs of Construction” means the sum of (i) hard and soft out-of-
pocket costs paid to Unaffiliated third parties (including, without limitation, land use
planning and engineering costs, land acquisition costs, construction and management costs,
and permit and construction fees); (ii) general conditions costs (to the extent not included
in section “(i)” above, not to exceed five percent (5%) of hard costs); and (iii) an internal
DEVELOPER project administration fee of up to three percent (3%) of the hard and soft
costs set forth in (i) above to compensate DEVELOPER for performance of contract
administration, bidding, accounting, design oversight, and project management. For the
avoidance of doubt, the categories of costs set forth in clauses “(i)”, “(ii)”, and “(iii)” in
the precedent sentence are mutually exclusive, and no cost in one category may be included
in any other category. Actual Costs of Construction shall be evidenced by DEVELOPER’s
submission of paid invoices or other documentation reasonably acceptable to City. Except
as provided in clause (iii) above, internal project management and administrative costs and
expenses paid to affiliates of DEVELOPER, if any, shall not be counted for purposes of
the fee credit calculation.
1.1.2 “Agreement” means this Development Agreement.
1.1.3 “Affiliate” means a person or entity that, directly or indirectly controls the
DEVELOPER, is controlled by the DEVELOPER, or is, with the DEVELOPER, under
common control of another person or entity. Indicia of control include, without limitation,
interlocking management or ownership; identity of interests among family members;
shared facilities and equipment; common use of employees; and use of substantially the
same management, ownership or principals as the DEVELOPER.
1.1.4 “Anchor Building” means the approximately 157,844 sq. ft. anchor
building as depicted on the Plot Plan.
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1.1.5 “Applicable Law” means all federal, state, and local laws and regulations
applicable to the Project as of the Effective Date.
1.1.6 “Assessment District” means City of Menifee Community Facilities
District No. 2017-1 (Maintenance Services), any other Community Facilities District
and/or Assessment District allowing for land secured financing of services and
improvements for the benefit of the Project.
1.1.7 “City Council” means the City Council of the CITY.
1.1.8 “CITY Parties” means the CITY, City Council, CITY officers, employees,
attorneys and agents.
1.1.9 “Claim” means any claim, loss, cost, damage, expense, liability, lien,
action, cause of action (whether in tort, contract, under statute, at law, in equity or
otherwise), charge, award, assessment, fine or penalty of any kind (including consultant
and expert fees, Legal Costs, and expenses and investigation costs of whatever kind or
nature), and any judgment caused or initiated by a third party. Without limiting the
foregoing, “Claims” include any matter that results or arises in any way from any of the
following: (1) the noncompliance by DEVELOPER or its contractor with any applicable
local, state and/or federal law or regulation, including, without limitation, any applicable
federal and/or state labor laws or regulations (including, without limitation, if applicable,
the requirement to pay state and/or federal prevailing wages and hire apprentices); (2) the
implementation of Labor Code Section 1781 and/or any other similar law or regulation;
and/or (3) failure by DEVELOPER to provide any required disclosure or identification as
required by Labor Code Section 1781, as the same may be amended from time to time, or
any other similar law or regulation.
1.1.10 “Costs” means quantifiable expenses of any kind, including without
limitation the allocated value of staff time, amounts expended for consultant and/or legal
services, acquisition expenses, and allocated overhead.
1.1.11 “CUP” means Conditional Use Permit 2018-288, which authorizes, subject
to the conditions contained therein, the gas station and senior living uses depicted on the
Plot Plan.
1.1.12 “Default” means the failure to perform any material duty or obligation set
forth in this Agreement or to comply in good faith with the terms of this Agreement.
1.1.13 “DEVELOPER” means Kelco Properties, LLC, a California limited
liability company and Platinum Partners, LLC, a California, limited liability company and
their successors in interest to all or any part of the Property.
1.1.14 “Development” means the improvement of the Property for the purposes of
completing the structures, improvements and facilities comprising the Project including,
but not limited to: grading; the construction of infrastructure and public facilities related
to the Project whether located within or outside the Property; the construction of buildings
and structures; and the installation of landscaping and park facilities and improvements.
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“Development” also includes the maintenance, repair, reconstruction or redevelopment of
any building, structure, improvement, landscaping or facility after the construction and
completion thereof.
1.1.15 “Development Approvals” means all permits, licenses, consents, rights and
privileges, and other actions subject to approval or issuance by CITY in connection with
Development of the Property issued by CITY on or before the Effective Date, including
but not limited to:
(a) The Plot Plan, including without limitation, the square footage and
percentage Property coverage amounts described in Recital B;
(b) Variances, conditional use permits (including the CUP), master
plans, and public use permits; and
(c) Grading, improvement and building permits.
1.1.16 “Development Fees” means the monetary consideration charged by CITY
in connection with a development project for the purpose of defraying all or a portion of
the cost of mitigating the impacts of the Project and development of the public facilities
related to Development of the Project. Development Fees shall not include: (i) CITY’s
normal fees for processing, environmental assessment/review, tentative tracts/parcel map
review, plan checking, site review, site approval, administrative review, building permit
(plumbing, mechanical, electrical, building), inspection, and similar fees imposed to
recover CITY’s Costs associated with processing, review, and inspection of applications,
plans, specifications, etc.; and/or (ii) fees and charges levied by any other public agency,
utility, district, or joint powers authority, whether or not such fees are collected by CITY.
1.1.17 “Development Plan” means the plan for Development of the Property,
including without limitation, the Development Approvals, planning and zoning standards,
regulations, applicable conditions of approval, and criteria for the Development of the
Property, contained in and consistent with Exhibit C. “Development Plan” also includes
the Mitigation Measures identified in Exhibit D, and the site plan attached as Exhibit C-
1.
1.1.18 “Development Requirement” means any requirement of CITY in
connection with or pursuant to any Development Approval for the dedication of land, the
construction or improvement of public facilities, the payment of fees (including
Development Fees) or assessments in order to lessen, offset, mitigate or compensate for
the impacts of Development on the environment, or the advancement of the public interest.
1.1.19 “Effective Date” means the date that is the later of: (i) the date that the
ordinance approving this Agreement becomes effective; or (ii) the date that this Agreement
is executed by DEVELOPER.
1.1.20 “Excess Contributions” means the contributions toward estimated
community and area-wide infrastructure improvements to the extent they exceed the
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Development Requirements the CITY could otherwise impose on the Project, and are not
recouped through Development Fee credits or reimbursements.
1.1.21 “Fee Freeze Period” means the first seven (7) years of this Agreement from
the Effective Date.
1.1.22 “KELCO” means Kelco Properties, LLC, a California limited liability
company.
1.1.23 “Land Use Regulations” means all ordinances, resolutions, codes, rules,
regulations, CITY adopted plans (including, but not limited to, trail plans and park master
plans) and official policies of CITY adopted and effective on or before the Effective Date
governing Development and use of land, including, without limitation, the permitted use
of land, the density or intensity of use, subdivision requirements, the maximum height and
size of proposed buildings, the provisions for reservation or dedication of land for public
purposes, and the design, improvement and construction standards and specifications
applicable to the Development of the Property. “Land Use Regulations” does not include
any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations;
(b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public property;
(e) the exercise of the power of eminent domain; and
(f) the amount of processing fees or development impact fees.
1.1.24 “Legal Costs” means for any Person, all actual and reasonable costs and
expenses such Person incurs in any legal proceeding (or other matter for which such Person
is entitled to be reimbursed for its Legal Costs), including reasonable attorneys’ fees, court
costs and expenses, including in or as a result of any: (a) bankruptcy proceeding;
(b) litigation between the Parties; (c) negotiating or documenting any agreement with a
third party requested by the other Party; (d) requirement or request that such Person or its
employees act as a witness in any proceeding regarding this Agreement or the other Party;
and (e) review or approval that the other Party requests of such Person. All references to
Legal Costs shall include the salaries, benefits and costs of in-house or contract general
counsel to CITY or DEVELOPER, respectively, and the lawyers employed in the office of
such general counsel who provide legal services regarding a particular matter, adjusted to
or billed at an hourly rate and multiplied by the time spent on such matter rounded to
increments of one-tenth of an hour, in addition to Legal Costs of outside counsel retained
by CITY or DEVELOPER, respectively, for such matter.
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1.1.25 “Mitigation Measures” means those requirements imposed on the Project
contained in the Mitigation Monitoring/Reporting Plan for the Project, which is attached
hereto as Exhibit D.
1.1.26 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed
of trust or any other security-device, a lender or each of their respective successors and
assigns.
1.1.27 “Party” and “Parties” mean and refer to CITY and/or DEVELOPER, as
context dictates, and their respective successors, assigns, and Affiliates.
1.1.28 “Person” means any association, corporation, government, individual,
joint venture, joint-stock company, limited liability company, partnership, trust,
unincorporated organization or other entity of any kind.
1.1.29 “PLATINUM” means Platinum Partners, LLC, a California limited liability
company.
1.1.30 “Plot Plan” means Plot Plan No. 2017-287.
1.1.31 “Project” means the Development of the Property consistent with the
Development Plan.
1.1.32 “Property” means the real property described in Exhibit A and shown on
Exhibit B to this Agreement.
1.1.33 “Reservation of Authority” means the rights and authority excepted from
the assurances and rights provided to DEVELOPER under this Agreement and reserved to
CITY.
1.1.34 “Subsequent Development Approvals” means all permits, licenses,
consents, rights and privileges, and other actions subject to approval or issuance by CITY
in connection with Development of the Property issued by CITY subsequent to the
Effective Date.
1.1.35 “Subsequent Land Use Regulations” means all ordinances, codes, rules,
regulations, CITY adopted plans and official policies of CITY adopted and effective after
the Effective Date of this Agreement governing Development and use of the Property,
including, without limitation, the permitted use of the Property, the density or intensity of
use, subdivision requirements, the maximum height and size of proposed buildings, the
provisions for reservation or dedication of land for public purposes, and the design,
improvement, and construction standards and specifications applicable to the Development
of the Property; provided, however, that “Subsequent Land Use Regulations” do not
include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of business, professions, and occupations; (b) taxes and assessments; (c) the
control and abatement of nuisances; (d) the granting of encroachment permits and the
conveyance of rights and interests which provide for the use of or entry upon public property;
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(e) the exercise of the power of eminent domain; and (f) the amount of processing fees or
development impact fees.
1.1.36 “Term” means the period of time from the Effective Date until the
expiration of this Agreement as provided in subsection 2.4, or earlier termination as
provided in Section 8.
1.1.37 “Transfer” means sell, assign, or transfer.
1.1.38 “Unaffiliated” means and refers to a person or entity that is not an Affiliate.
1.2 Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
Exhibit A Legal Description of the Property.
Exhibit B Map showing Property and its location.
Exhibit C Development Plan
Exhibit C-1 Site Plan
Exhibit D Mitigation Monitoring/Reporting Plan
Exhibit E Development Impact Fees
Exhibit F Public Benefits
Exhibit F-1 Summary of Main Drain Improvements in Scott Road and Haun
Road
Exhibit F-2 Preliminary Drainage Plan Detail
Exhibit F-3 Scoping Letter for Haun Road Alignment Study
Exhibit G Assumption Agreement
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. From and following the Effective Date,
Development of the Project and CITY actions on applications for Subsequent Development
Approvals respecting the Development of the Project shall be subject to the terms and provisions
of this Agreement.
2.2 Assignment.
2.2.1 Release of Transferring DEVELOPER. Upon the Transfer in whole or in
part, of DEVELOPER’s right and interest to all or any portion of the Property,
DEVELOPER may, at least thirty (30) days prior to completion of the Transfer, apply to
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CITY for a release from its obligations hereunder with respect to the portion of the Property
so Transferred. CITY shall approve the partial or full release if: (i) DEVELOPER is not
in Default of this Agreement at the time of the request for release, or provides adequate
assurances to CITY that it will cure any Default prior to the Transfer; (ii) with respect to
the Transfer of any lot that has not been fully improved, the transferee executes and delivers
to CITY a written assumption agreement in substance and form which is approved by
CITY’s Attorney, which approval shall not be unreasonably denied, and in which: (A) the
name and address of the transferee is set forth; (B) the transferee expressly assumes the
obligations of DEVELOPER under this Agreement as to the portion of the Property
transferred; (C) the transferee provides commercially reasonable assurances of its
performance of the obligations of the DEVELOPER that transferee proposes to assume;
and (D) the assumption agreement adequately allocates to the transferee (or justifies the
non-allocation) credits, reimbursements, or other benefits provided to DEVELOPER under
this Agreement that relate to the portion of the Property transferred. A written assumption
agreement substantially in the form of Exhibit G, augmented with the assurances of
performance and allocations of credits, reimbursement rights, and other benefits, as
detailed in clauses (ii)(C) and (ii)(D) of the preceding sentence, shall be deemed pre-
approved by the CITY’s Attorney. Failure to obtain CITY approval of a written
assumption agreement hereunder shall not negate, modify or otherwise affect the liability
under this Agreement of any transferee or future owner of any portion of the Property.
DEVELOPER shall remain responsible for all obligations set forth in the Agreement that
are not subject to an assignment approved by the CITY in accordance with this paragraph.
2.3 Term.
2.3.1 Term. The term of this Agreement (“Term”) shall commence on the
Effective Date and shall continue thereafter for a period of fifteen (15) years (“Original
Term”), unless this Agreement is terminated, modified, or extended by circumstances set
forth in this Agreement or by mutual written consent of the Parties. The Term shall be
automatically extended for a five (5) year period (“First Extension”) if DEVELOPER
obtains certificates of occupancy for either a hotel or 100,000 square feet of commercial
development prior to the expiration of the Original Term. The Term shall be further
automatically extended by an additional five (5) year period (“Second Extension”) if
DEVELOPER obtains certificates of occupancy for either (i) a hotel and 100,000 square
feet of commercial development or (ii) 200,000 square feet of commercial development
prior to the expiration of the First Extension. The Term may be extended beyond the
lapsing of the Second Extension if the DEVELOPER and CITY, in their respective sole
and absolute discretion, so agree in writing; provided, however, that the total Term shall
not exceed twenty-five (25) years except for the extensions of time due to Force Majeure
Delays contemplated by Section 10.12.
2.3.2 Where a shorter term is not mandated by Applicable Law, the term of any
and all discretionary Development Approvals and discretionary Subsequent Development
Approvals shall automatically be extended for the longer of the Term of this Agreement or
the term otherwise applicable to such discretionary Development Approvals or
discretionary Subsequent Development Approvals. For the avoidance of doubt, the
following categories of Development Approvals and Subsequent Development Approvals
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shall be deemed “not discretionary” for purposes of this section: grading permits, building
permits, improvement permits, landscape permits, wall and fence plans, and signage
permits and programs.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement, DEVELOPER shall
have a vested right to develop the Project in accordance with, and to the extent of, the Development
Plan. Development of the Project is hereby vested specifically with the Property, and that
DEVELOPER retains the right to apportion development rights between itself and any subsequent
DEVELOPER, upon the Transfer of any portion of the Property, so long as such apportionment
is, prior to becoming effective, approved by CITY in writing in accordance with Section 2, and
consistent with the Development Plan and the Land Use Regulations.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided
under the terms of this Agreement, the rules, regulations and official policies governing permitted
uses of the Property, the density and intensity of use of the Property, the maximum height and size
of proposed buildings, and the design, improvement and construction standards and specifications
applicable to Development of the Property, shall be those contained in the Development Plan and
the Land Use Regulations.
3.3 Subsequent Development Approvals. CITY shall accept for processing, review
and action all applications for Subsequent Development Approvals necessary and appropriate for
implementation of the Project, and such applications shall be processed in the normal manner for
processing such matters, for all or a portion of the Property at DEVELOPER’s option. The CITY
further agrees that, unless otherwise requested by DEVELOPER or as authorized by this
Agreement, it shall not, absent a violation of Applicable Law by DEVELOPER, amend or rescind
any Subsequent Development Approvals respecting the Property after such approvals have been
granted by the CITY. All Subsequent Development Approvals that are necessary and appropriate
for implementation of the Project shall be deemed incorporated herein and vested as of the
effective date of such approvals and shall be governed by the terms and conditions of this
Agreement; provided, however, that requests for Subsequent Development Approvals (including,
without limitation, General Plan amendments, zone changes, or variances) that increase the overall
intensity or density of Development or otherwise cause a substantial modification of the
Development Plan shall not be deemed incorporated herein and vested as of the effective date of
such approvals, but shall instead require an amendment to this Agreement in accordance with
Applicable Law and Section 3.5.
3.4 Timing of Development. The Parties acknowledge that DEVELOPER cannot at
this time predict when or the rate at which phases of the Property will be developed. Such
decisions depend upon numerous factors which are not within the control of DEVELOPER, such
as market orientation and demand, interest rates, absorption, completion and other similar factors.
Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984)
37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development
resulted in a later-adopted initiative restricting the timing of development to prevail over such
parties’ agreement, it is the Parties’ intent to cure that deficiency by acknowledging and providing
that DEVELOPER shall have the right to develop the Property in such order and at such rate and
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at such times as DEVELOPER deems appropriate within the exercise of its subjective business
judgment. Nothing in this section is intended to alter the standard durational limits of any
applicable permits issued to DEVELOPER.
3.5 Changes and Amendments. The Parties acknowledge that Development of the
Project will likely require Subsequent Development Approvals, and that in connection therewith
DEVELOPER may determine that changes are appropriate and desirable in the existing
Development Approvals or Development Plan. In the event DEVELOPER finds that such a
change is appropriate or desirable, DEVELOPER may apply, in writing, for an amendment to prior
Development Approvals or the Development Plan to effectuate such change, and CITY shall
process and act on such application notwithstanding anything in this Agreement that may be to the
contrary. CITY shall have no obligation to grant any such application for a Subsequent
Development Approval by DEVELOPER (including, without limitation, General Plan
amendments, zone changes, or variances) that increases the overall intensity or density of
Development or, in the sole and absolute discretion of the CITY’s City Manager, otherwise causes
a substantial modification of the Development Plan and CITY shall not approve any such
application unless accompanied by an amendment to this Agreement processed in accordance with
Applicable Law. Except as provided in the preceding sentence, if approved in a form to which
DEVELOPER and CITY have both, in their respective sole and absolute discretion, consented in
writing, any application effectuating a change in the Development Approvals or Development Plan
shall be incorporated herein and any resulting modifications to the Exhibits to this Agreement,
shall be administratively appended to this Agreement for tracking purposes, and a notice thereof
shall be recorded in the Official Records of the County of Riverside.
3.5.1 Operating Memoranda. The provisions of this Development Agreement
require a close degree of cooperation between CITY and DEVELOPER and Development
of the Property hereunder may demonstrate that refinements and clarifications are
appropriate with respect to the details of performance of CITY and DEVELOPER. If and
when, from time to time, during the Term of this Development Agreement, CITY and
DEVELOPER agree that such clarifications are necessary or appropriate, CITY and
DEVELOPER shall effectuate such clarifications through operating memoranda approved
in writing by CITY and DEVELOPER, which, after execution, shall be attached hereto as
addenda and become a part hereof, and may be further clarified from time to time as
necessary with future approval by CITY and DEVELOPER. No such operating
memoranda shall constitute an amendment to this Development Agreement requiring
public notice or hearing. The City Manager, in consultation with the City Attorney, shall
make the determination on behalf of CITY whether a requested clarification may be
effectuated pursuant to this Section 3.5.1 or whether the requested clarification is of such
a character to constitute an amendment hereof pursuant to Section 3.5, above. The City
Manager shall be authorized to execute any operating memoranda hereunder on behalf of
CITY.
3.6 Reservation of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other
provision of this Agreement, the following Subsequent Land Use Regulations shall apply
to the Development of the Property:
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(a) Processing fees and charges of every kind and nature imposed by
CITY to cover the estimated actual Costs to CITY of processing applications for
Development Approvals, or Subsequent Development Approvals, or for monitoring
compliance with any Development Approvals or Subsequent Development
Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearing, reports, recommendations, appeals
and any other matter of procedure.
(c) Changes adopted by the California Building Standards Commission
to the California Building Code, from time to time, as well as local modifications
to the California Building Code adopted by CITY as Subsequent Land Use
Regulations.
(d) Regulations imposed by the CITY which may be in conflict with the
Development Plan but which are reasonably necessary to protect the public health
or safety. To the extent reasonable and feasible, any such regulations shall be
applied and construed consistent with Section 3.6.2 below so as to provide
DEVELOPER with the rights and assurances provided under this Agreement.
(e) Regulations imposed by the CITY which are not in conflict with the
Development Plan and this Agreement.
(f) Regulations which are in conflict with the Development Plan
provided DEVELOPER and CITY have given written consent to the application of
such regulations to Development of Property.
(g) Laws and regulations imposed by Federal, State, regional, or other
governmental authorities, or imposed directly by the CITY as necessary to comply
with Federal, State, regional or other governmental authorities’ regulations, which
CITY is required to enforce against the Property or the Development of the
Property.
For purposes of this Section 3.6 and Section 3.2 the word “conflict” means any CITY-
imposed modification that: (a) changes the permitted uses of the Property, the density and
intensity of use (including, but not limited to, floor area ratios of buildings and the
maximum number of units), or the maximum height and size of proposed buildings in a
manner that is not consistent with the vested Land Use Regulations, the Development
Approvals, and/or the vested Subsequent Development Approvals; (b) imposes new or
additional requirements, or changes existing requirements, for reservation or dedication of
land for public purposes or requirements for infrastructure, public improvements, or public
utilities that are not otherwise provided for pursuant to the vested Land Use Regulations,
the Development Approvals, and/or vested Subsequent Development Approvals;
(c) changes conditions upon Development of the Property other than as permitted by
Section 3.6.1, the vested Land Use Regulations, the Development Approvals, and the
vested Subsequent Development Approvals; (d) expressly limits the timing, phasing, or
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rate of Development of the Property in a manner that is not consistent with the vested Land
Use Regulations, the Development Approvals, and/or the vested Subsequent Development
Approvals; (e) limits the location of building sites, grading, or other improvements on the
Property in a manner that is not consistent with the vested Land Use Regulations, the
Development Approvals, and/or the vested Subsequent Development Approvals;
(f) unreasonably limits or controls the ability to obtain public utilities, services, or facilities
in a manner that is not consistent with the vested Land Use Regulations, the Development
Approvals, and/or the vested Subsequent Development Approvals (provided, however,
nothing herein shall be deemed to exempt the Project or the Property from any water use
rationing requirements that may be imposed from time to time in the future or be construed
as a reservation of any existing sanitary sewer or potable water capacity); (g) requires, or
removes the requirement for, the issuance of additional permits or approvals by CITY
(except to the extent otherwise authorized by this section) other than those required by
Land Use Regulations, the Development Approvals, and the vested Subsequent
Development Approvals; (h) changes or removes the permitted Development Fees or adds
new Development Fees, except as permitted in this Agreement; (i) establishes, enacts,
increases, or imposes against the Project or the Property any special taxes or assessments
other than those specifically permitted by this Agreement; (j) imposes against the Project
any Development Requirement not specifically authorized by then-Applicable Law or the
vested Land Use Regulations or vested Subsequent Development Approvals (including this
Agreement); (k) unreasonably limits the processing or procuring of applications and
approvals of Subsequent Development Approvals; or (l) changes, as against the Project,
any obligations regarding affordable housing not specifically required by the Development
Approvals (except to the extent otherwise necessary to comply with a mandate or law
imposed by another governmental authority).
3.6.2 Future Discretion of CITY. This Agreement shall not prevent CITY, in
acting on Subsequent Development Approvals, from applying Subsequent Land Use
Regulations which do not conflict with the Development Plan, nor shall this Agreement
prevent CITY from denying or conditionally approving any Subsequent Development
Approval on the basis of the existing Land Use Regulations or any Subsequent Land Use
Regulation not in conflict with the Development Plan so long as the conditions imposed
on Subsequent Development Approvals do not impose Development Requirements beyond
those included in the Development Approvals; provided, however, that consistent with
Section 3.5, nothing in this Section 3.6 shall in any way require that CITY grant any
Subsequent Development Approval (including, without limitation, General Plan
amendments, zone changes, specific plan amendments, or variances) that modifies the
overall intensity or density of Development or otherwise is, in the sole and absolute
discretion of the CITY, a substantial modification of the Development Plan. Such
Subsequent Development Approvals may be approved, denied, or conditioned in any manner
deemed appropriate by the CITY and consistent with then Applicable Laws, and shall not be
limited in any way by the provisions of this Agreement.
3.6.3 Modification or Suspension by State or Federal Law. In the event that State
or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent
or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement shall be modified or suspended as may be necessary to
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comply with such State or Federal laws or regulations, and this Agreement shall remain in
full force and effect to the extent it is not inconsistent with such laws or regulations and to
the extent such laws or regulations do not render such remaining provisions impractical to
enforce.
3.6.4 Taxes, Assessments and Fees. This Agreement shall not prevent the CITY
from enacting, levying or imposing any new or increased tax, assessment or fee.
3.7 Regulation by Other Public Agencies. It is acknowledged by the Parties that
other public agencies not subject to control by CITY possess authority to regulate aspects of the
Development of the Property, and this Agreement does not limit the authority of such other public
agencies.
3.8 Compliance with Government Code Section 66473.7. As mandated by
Government Code Section 65867.5, any tentative map prepared for the subdivision(s) included
within the Project will comply with Government Code Section 66473.7.
3.9 Vesting Tentative Maps. If any tentative or final subdivision map, or tentative or
final parcel map, heretofore or hereafter approved in connection with Development of the Property,
is a vesting map under the Subdivision Map Act (Government Code Section 66410, et seq.), and
if this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it
grants a vested right to develop to DEVELOPER, then and to that extent the rights and protection
afforded DEVELOPER under the laws and ordinances applicable to vesting maps shall supersede
the provisions of this Agreement. Except as set forth immediately above, Development of the
Property shall occur only as provided in this Agreement, and the provisions in this Agreement
shall be controlling over any conflicting provision of law or ordinance concerning vesting maps.
3.10 Provision of Real Property Interests by CITY. In any instance where
DEVELOPER is required by a condition on the Project tentative subdivision map to construct any
public improvement on land not owned by DEVELOPER, CITY shall first have acquired the
necessary real property interests to allow DEVELOPER to construct such public improvements.
Costs associated with such acquisition or condemnation proceedings, if any, shall be
DEVELOPER’s responsibility.
3.11 Cooperation in Completing Development Plan. CITY agrees to cooperate with
DEVELOPER, at no cost to CITY, as necessary for the successful completion of the Development
Plan and fulfillment of Development Requirements, including, without limitation, accomplishment
of each and every one of the Mitigation Measures, and all other requirements or conditions that
may be imposed on the Development by other public agencies.
3.12 Future Tax Sharing Agreements. In the event that a hotel is opened within the
Project, CITY shall enter into good faith negotiations toward a Transient Occupancy Tax (“TOT”)
Sharing Agreement with the future hotel operator on terms mutually acceptable to the future
operator and the CITY to help offset initial operational, staff training and similar related costs
under which the CITY may share TOT generated by a Preferred Hotel (as defined below) with the
hotel operator in an amount not to exceed One Hundred Thousand Dollars ($100,000) per year
over the initial ten (10) years of hotel operations, with a maximum TOT sharing of One Million
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Dollars ($1,000,000) over the term of the TOT Sharing Agreement. For purposes of this paragraph
3.12, a “Preferred Hotel” is a hotel type and brand that the City determines, in its sole discretion,
best suits market and community needs. As of the Effective Date, a “Preferred Hotel” is an “upper
mid-scale”, limited service hotel or luxury hotel. CITY further retains the right to consider the
proposed hotel brand when determining whether and to what extent it will enter into a TOT Sharing
Agreement.
In the event that a wholesale club or big-box anchor store is opened within the Project, the CITY
shall enter into good faith negotiations toward a Sales Tax Sharing Agreement with the future
operator of such on terms mutually acceptable to to the wholesale club or big-box anchor store and
the CITY to help offset initial operational, staff training and similar related costs on similar terms
as described above for the TOT Sharing Agreement.
4. REVIEW FOR COMPLIANCE.
4.1 Periodic Review. During the Term, the City Council or, at CITY’s election
CITY’s City Manager, shall review this Agreement annually during May of each year following
the Effective Date of this Agreement, in order to ascertain the good faith compliance by
DEVELOPER with the terms of the Agreement. As part of that review, DEVELOPER shall
submit an annual monitoring review statement describing its actions in compliance with this
Agreement, in a form acceptable to the CITY’s City Manager, by April 10. The statement shall
be accompanied by an annual review and administration fee sufficient to defray the estimated costs
of review and administration of the Agreement during the succeeding year. The amount of the
annual review and administration fee shall be set by resolution of the City Council. CITY shall
not hold an Annual Review unless it provides DEVELOPER at least thirty (30) days written notice
of such Annual Review.
4.2 Special Review. The City Council may order a special review of compliance with
this Agreement at any time. DEVELOPER shall cooperate with the CITY in the conduct of
such special reviews.
4.3 Procedure. In connection with any periodic or special review, each Party shall
have a reasonable opportunity to assert matters which it believes have not been undertaken in
accordance with the Agreement, to explain the basis for such assertion, and to receive from the
other Party a justification of its position on such matters. If on the basis of the Parties’ review of
any terms of the Agreement, either Party concludes that the other Party has not complied in good
faith with the terms of the Agreement, then such Party may issue a written “Notice of Non-
Compliance” specifying the grounds therefor and all facts demonstrating such non-compliance.
The Party receiving a Notice of Non-Compliance shall have thirty (30) days to respond in writing
to said Notice. If a Notice of Non-Compliance is contested, the Parties shall have up to sixty (60)
days to arrive at a mutually acceptable resolution of the matters occasioning the Notice. In the
event that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by
the end of the sixty (60) day period, the Party alleging the non-compliance may thereupon pursue
the remedies provided in Section 8.
4.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or
Special Review, DEVELOPER is found to be in compliance with this Agreement, CITY shall,
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upon request by DEVELOPER, issue a Certificate of Agreement Compliance (“Certificate”) to
DEVELOPER stating that after the most recent Periodic or Special Review and based upon the
information known or made known to the CITY’s City Manager and City Council that (1) this
Agreement remains in effect and (2) DEVELOPER is in compliance. The Certificate shall be in
recordable form, shall contain information necessary to communicate constructive record notice
of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special
Review and shall state the anticipated date of commencement of the next Periodic Review.
DEVELOPER may record the Certificate with the County Recorder. Additionally, DEVELOPER
may at any time request from the CITY a Certificate stating, in addition to the foregoing, which
obligations under this Agreement have been fully satisfied with respect to the Property, or any lot
or parcel within the Property.
5. FEES AND CREDITS.
5.1 Development Fees. The current Development Fees applicable to the Project are in
the amount set forth in Exhibit E. DEVELOPER agrees that all Development Approvals and
Subsequent Development Approvals that do not require an amendment to this Agreement under
Section 3.5 shall be subject to the Development Fees, as set forth in this Section 5.1. For the first
seven (7) years of this Agreement from the Effective Date (the “Fee Freeze Period”), the
Development Fees applicable to the Project shall be as set forth in Exhibit E without increase.
During the three year period immediately following the Fee Freeze Period, the Development Fees
applicable to the Project shall be those set forth in Exhibit E plus one half of the approved
increase(s) in those fees occurring after the Effective Date and through the date the fees are paid.
Any Development Fees that become due and payable after the tenth (10th) anniversary of the
Effective Date shall be subject to the full Development Fee in effect at the time that such
Development Fees are paid. Decreases in in the Development Fees, if any, shall apply to the
Development of the Project.
5.2 Credits. DEVELOPER may earn credits toward the payment of Development
Fees in exchange for its construction of public improvements that are otherwise designated for
funding with Development Fees; provided, however, that any credits against Development Fees
shall be utilized only in connection with the Development of the Project on the Property.
5.3 Reimbursements. CITY and DEVELOPER may enter into Reimbursement
Agreements for each of public improvement that is otherwise designated for funding with
Development Fees; provided, however, that in no event shall DEVELOPER receive
reimbursements that exceed one hundred percent (100%) of the Actual Costs of Construction of
any such improvement(s).
5.4 Credit/Reimbursement Agreements for Development Fees. To receive credits
pursuant to Section 5.2 or reimbursements pursuant to Section 5.3, DEVELOPER must first enter
into an agreement with CITY (“Credit/Reimbursement Agreement”) which shall include terms
that: (i) give DEVELOPER the specific impact fee credits in accordance with Section 5.2 (if
applicable); (ii) establish a mechanism for DEVELOPER to obtain, for a period of ten (10) years
following the effective date of each Credit/Reimbursement Agreement, reimbursements from
CITY for contributions associated with public improvement constructed by DEVELOPER that are
in excess of DEVELOPER’s otherwise applicable obligations, with such reimbursements coming
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solely from the transfer from CITY to DEVELOPER of the Development Fees (if any) paid after
the Effective Date that would otherwise be eligible for expenditure on the public improvement
constructed by DEVELOPER.
5.4.1 Limitation on Total Credits and Reimbursements. For each public
improvement that is subject to a Credit/Reimbursement Agreement, the total credits and
reimbursements shall not exceed the dollar amount of the Actual Cost of Construction of
such improvement.
5.4.2 Interpretation and Precedence. This Section 5.4 shall be deemed an
application for such credits and reimbursements if such credits and reimbursements require
an application under the CITY’s Municipal Code. Further, this Section 5.4 shall control
over any contrary provisions applicable to Development Fee credits and reimbursements
in the CITY’s Municipal Code.
5.5 Transportation Uniform Mitigation Fee Reimbursement Agreements. CITY
will cooperate in good faith, but at no cost to CITY, in working with the Western Riverside Council
of Governments to facilitate a reimbursement agreement(s) through which DEVELOPER can
receive Transportation Uniform Mitigation Fee program credits in exchange for building one or
more improvements identified in the Transportation Uniform Mitigation Fee program.
5.6 Public Benefit. DEVELOPER shall, subject to this Agreement, construct or cause
the construction of all of the community and area-wide infrastructure within the time and as set
forth in Exhibit F, even though those benefits exceed the Development Requirements the CITY
could otherwise impose on the Project. CITY and DEVELOPER agree that this Agreement serves
as a contractual mechanism through which the CITY can facilitate construction of such facilities.
5.7 Contingent Payment of Public Benefit Fee. If a senior village project is
constructed in the Project prior to the earlier of: (i) the issuance of a certificate of occupancy of a
hotel; (ii) issuance of a certificate of occupancy for the Anchor Building; or (iii) issuance of a
certificate of occupancy for at least ninety-five percent (95%) of the net square footage of all other
commercial development identified in the Site Plan (excluding the Anchor Building)
(“Milestones”), then DEVELOPER shall pay to CITY an “Early Residential Fee” in the amount
of Two Hundred Eighty Five Dollars ($285) per occupied senior village unit per year in
conjunction with the Annual Review pursuant to Section 4.1 until one of the Milestones is satisfied.
5.8 Challenges to Fees. Nothing set forth herein is intended or shall be construed to
limit or restrict whatever right the DEVELOPER might otherwise have to challenge any fee,
charge, assessment, or tax either not set forth in this Agreement or not in effect as of the Effective
Date. DEVELOPER shall timely pay all applicable fees, charges, assessments, and special and
general taxes validly imposed in accordance with the Constitution and laws of the State of
California, including without limitation school impact fees in accordance with Government Code
§§ 65995, et seq.
6. FINANCING FOR PUBLIC IMPROVEMENTS AND SERVICES.
6.1 Formation of Assessment District(s). If requested by DEVELOPER, CITY and
DEVELOPER will cooperate in the formation of any Assessment District to fund DEVELOPER’s
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obligation to construct public improvements necessitated by the Project. Notwithstanding the
foregoing, it is acknowledged and agreed by the Parties that nothing contained in this Agreement
shall be construed as requiring CITY or the City Council to form any such district or to issue and
sell bonds.
6.1.1 CITY Advances. Upon written request of CITY, DEVELOPER will
advance amounts necessary to pay all Costs and expenses of CITY to evaluate and structure
any Assessment District; CITY will not be obligated to pay any Costs related to the
formation or implementation of any Assessment District from its funds. CITY staff will
meet with the DEVELOPER to establish a preliminary budget for such Costs, and will
confer with DEVELOPER from time to time as to any necessary modifications to that
budget.
6.1.2 DEVELOPER Reimbursements. Any Assessment District will, to the extent
allowable under Applicable Law, provide for the reimbursement to DEVELOPER of any
advances by DEVELOPER described in Section 6.1.1, and any other costs incurred by
DEVELOPER that are related to the Assessment District, such as the costs of legal counsel,
special tax consultants, and engineers. DEVELOPER agrees to promptly submit to CITY
a detailed accounting of all such other costs incurred by DEVELOPER at such time as
DEVELOPER makes application for reimbursement.
6.1.3 Selection of Consultants. CITY shall consult with DEVELOPER prior to
engaging any consultant (including bond counsel, underwriters, appraisers, market
absorption analysts, financial advisors, special tax consultants, assessment engineers and
other consultants deemed necessary to accomplish any financing) and DEVELOPER shall
be allowed an opportunity to provide input on each proposed consultant; provided,
however, that CITY shall retain sole and absolute discretion with regard to the selection of
consultants.
6.2 Formation of Infrastructure, Business Improvement, and/or Maintenance
Assessment District(s). CITY may request that DEVELOPER agree to annex the Property into
an Assessment District for purposes of funding costs of maintenance services. DEVELOPER, on
behalf of itself and its successors in interest, hereby irrevocably consents to the annexation of the
Property into the Assessment District and waives any and all right of protest or objection with
respect to such annexation. DEVELOPER agrees to cooperate with CITY and take all necessary
action to accomplish the annexation of the Property into the Assessment District, for the purposes
of funding maintenance services for the Project. DEVELOPER agrees to cooperate in the
imposition of assessments related to the Assessment District, including without limitation, if
required by CITY, the submission of a ballot to CITY by DEVELOPER (or its successors in
interest) in favor of the annexation into the Assessment District and the levying of such
assessments.
6.3 Maintenance of Legislative Discretion. Nothing in this Section 6 shall be
construed as a commitment by CITY to annex the Property into the Assessment District or as a
limitation on CITY’s legislative discretion with respect thereto. DEVELOPER has agreed to the
financing provisions set forth in this Section 6 and to perform the obligations hereunder in
exchange for the consideration and benefits provided to DEVELOPER by CITY under this
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Agreement, including without limitation the vested right to develop the Property in accordance
with Section 3.1.
6.4 Covenant Regarding Assessment District. For avoidance of doubt, the Parties
agree that this Agreement includes and constitutes a covenant not to contest the annexation into
the Assessment District as set forth in Paragraph 6.2. The covenant shall be binding upon
successive owners of the Property, or any portion thereof, and shall also be binding upon any and
all homeowners associations that have covenants, conditions, and restrictions governing the use of
the Property.
7. DEFAULT AND REMEDIES.
7.1 Specific Performance Available. The Parties acknowledge that money damages
and remedies at law generally are inadequate and specific performance is a particularly appropriate
remedy for the enforcement of this Agreement and should be available to DEVELOPER and CITY
because the size, nature and scope of the Project, make it impractical or impossible to restore the
Property to its natural condition once implementation of this Agreement has begun. After such
implementation, DEVELOPER and/or CITY may be foreclosed from other choices they may have
had to utilize or condition the uses of the Property or portions thereof. DEVELOPER and CITY
have invested significant time and resources in performing extensive planning and processing for
the Project and in negotiating and agreeing to the terms of this Agreement and will be investing
even more significant time and resources in implementing the Project in reliance upon the terms
of this Agreement, such that it would be extremely difficult to determine the sum of money which
would adequately compensate DEVELOPER and/or CITY for such efforts. The Parties therefore
agree that specific performance shall be the sole remedy available for a breach of this Agreement.
7.2 Money Damages Unavailable. Neither DEVELOPER nor CITY shall not be
entitled to any monetary compensation, whether characterized as money damages or injunctive or
other relief compelling the payment of money, including attorney fees, from the other Party by
reason of, arising out of, based upon, or relating to (a) the interpretation, enforcement,
performance, or breach of any provision of this Agreement, or (b) the respective rights or duties
of any of the Parties under the Development Approvals, the Subsequent Development Approvals,
any Development Requirement, the Land Use Regulations, or the Subsequent Land Use
Regulations. Notwithstanding the foregoing, CITY may recover from DEVELOPER any fees
owed under or pursuant to this Agreement; and DEVELOPER may recover from CITY the right
to exercise any credits and the right to receive any reimbursements under or pursuant to this
Agreement.
7.3 Termination of Agreement.
7.3.1 Termination of Agreement for Default of DEVELOPER. CITY in its
discretion may terminate this Agreement for any failure of Default by DEVELOPER;
provided, however, CITY may terminate this Agreement pursuant to this Section only after
following the procedure set forth in Section 4.3 and thereafter providing written notice to
DEVELOPER of the Default setting forth the nature of the Default and the actions, if any,
required by DEVELOPER to cure such Default and, where the Default can be cured,
DEVELOPER has failed to take such actions and cure such Default within thirty (30) days
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after the effective date of such notice or, in the event that such Default cannot be cured
within such thirty (30) day period but can be cured within a longer time, as reasonably
determined by the CITY in its sole discretion, DEVELOPER has failed to commence the
actions necessary to cure such Default within such thirty (30) day period and to diligently
proceed to complete such actions and cure such Default.
7.3.2 Termination of Agreement for Default of CITY. DEVELOPER in its
discretion may terminate this Agreement for any Default by CITY; provided, however,
DEVELOPER may terminate this Agreement pursuant to this Section only after providing
written notice by DEVELOPER to the CITY of the Default setting forth the nature of the
Default and the actions, if any, required by CITY to cure such Default and, where the
Default can be cured, the failure of CITY to cure such Default within thirty (30) days after
the effective date of such notice or, in the event that such Default cannot be cured within
such thirty (30) day period, the failure of CITY to commence to cure such Default within
such thirty (30) day period and to diligently proceed to complete such actions and to cure
such Default.
7.3.3 Rights and Duties Following Termination. Upon the termination of this
Agreement, no Party shall have any further right or obligation hereunder except with
respect to (i) any obligations to have been performed prior to said termination, or (ii) any
Default in the performance of the provisions of this Agreement which has occurred prior
to said termination.
8. INDEMNIFICATION AND THIRD PARTY LITIGATION.
8.1 Indemnities by DEVELOPER.
8.1.1 General Indemnity. DEVELOPER agrees to indemnify, protect, defend,
and hold harmless the CITY Parties from and against any and all Claims which may arise,
directly or indirectly, from the acts, omissions, or operations of DEVELOPER or
DEVELOPER’s agents, contractors, subcontractors, agents, or employees pursuant to this
Agreement, but excluding any loss resulting solely from the intentional or active
negligence of the CITY Parties. Notwithstanding the foregoing, (i) CITY shall have the
right to select and retain counsel to defend any such action or actions and DEVELOPER
shall pay the cost thereof; provided, however, that the Parties agree to attempt in good faith
to coordinate and/or consolidate their defense of any Claim that is subject to the
indemnification provisions of this Section; and (ii) this indemnity obligation shall not apply
to any Claim for which DEVELOPER has provided a separate indemnity to the CITY by
way of a separate instrument mutually accepted by the Parties.
8.1.2 Prevailing Wage Indemnity and Notice to Developer of Labor Code Section
1781. In connection with, but without limiting, the indemnification obligations set forth in
Section 9.1.1, DEVELOPER hereby expressly acknowledges and agrees that the CITY is
not by this Agreement affirmatively representing, and has not previously affirmatively
represented, to the DEVELOPER or any contractor(s) of DEVELOPER for any
construction on or Development on or adjacent to the Property, in writing or otherwise, in
a call for bids or any agreement or otherwise, that any work to be undertaken on the
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Property, as may be referred to in this Agreement or construed under this Agreement, is
not a “public work,” as defined in Section 1720 of the Labor Code, or under any similar
existing or hereinafter enacted law or regulation. The Parties agree that, in connection with
the Development and construction (as defined by Applicable Law) of the Project,
including, without limitation, any and all public works (as defined by Applicable Law),
DEVELOPER shall bear all risks of payment or non-payment of prevailing wages under
California law and/or federal law and/or the implementation of Labor Code Section 1781,
as the same may be amended from time to time, and/or any other similar law. With respect
to the foregoing, DEVELOPER shall be solely responsible, expressly or impliedly and
legally and financially, for determining and effectuating compliance with all applicable
federal, state and local public works requirements, prevailing wage laws, and labor laws
and standards, and CITY makes no representation, either legally and/or financially, as to
the applicability or non-applicability of any federal, state and local laws to the construction
of the Project as it may be amended pursuant hereto or otherwise.
Without limiting the foregoing, DEVELOPER shall indemnify, protect, defend and hold
harmless the CITY Parties, with counsel reasonably acceptable to CITY, from and against
“increased costs” as defined in California Labor Code Section 1781 (including CITY’s
reasonable attorneys’ fees, court and litigation costs, and fees of expert witnesses) in
connection with the Development or construction (as defined by Applicable Law) of or on
the Property, that results or arises in any way from (1) non-compliance by DEVELOPER
of the requirement, if and to the extent applicable, to pay federal or state prevailing wages
and hire apprentices, or (2) failure by DEVELOPER to provide any required disclosure or
identification as required by California Labor Code Sections 1720 et seq. including without
limitation specifically Section 1781, as the same may be amended from time to time. The
foregoing indemnity shall survive the expiration or earlier termination of this Agreement.
8.2 Indemnification Procedures. Wherever this Agreement requires DEVELOPER
to indemnify any CITY Party:
8.2.1 Prompt Notice. CITY shall promptly notify DEVELOPER in writing of
any Claim.
8.2.2 Cooperation. CITY shall reasonably cooperate with DEVELOPER’s
defense, provided DEVELOPER reimburses CITY’s actual reasonable out of pocket
expenses (including Legal Costs) of such cooperation.
8.2.3 Settlement. Any settlement shall require the prior written consent of both
CITY and DEVELOPER, which consent shall not be unreasonably withheld if the
settlement is objectively financially reasonable. If CITY refuses to authorize a settlement
that is objectively financially reasonable, it shall be responsible for costs and damages of
the Claim that are in excess of those incurred through the date of the CITY’s rejection of
the proposal, plus the amount of the proposal.
8.2.4 CITY Cooperation. CITY shall reasonably cooperate with DEVELOPER’s
defense, provided DEVELOPER reimburses CITY for its actual reasonable out of pocket
expenses (including Legal Costs) of such cooperation.
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8.2.5 Insurance Proceeds. DEVELOPER’s obligations shall be reduced by net
insurance proceeds CITY actually receives for the matter giving rise to indemnification.
8.3 Third Party Litigation. CITY shall promptly notify DEVELOPER of any Claim
against CITY and/or any CITY Party, and/or any other administrative or judicial action to
challenge, set aside, void, annul, limit or restrict the approval and continued implementation and
enforcement of this Agreement. DEVELOPER agrees to reimburse the CITY for its reasonable
Legal Costs incurred in connection with the defense of the Claim and to fully defend and indemnify
CITY for all costs of defense and/or judgment obtained in any such action or proceeding. CITY
and DEVELOPER agree to cooperate in the defense of such action(s).
8.4 Challenge to Enforceability of Specific Obligations. The Parties have
determined in good faith that each of the provisions of this Agreement are valid and enforceable.
Notwithstanding, if a court of competent jurisdiction finds invalid or unenforceable any provision
of this Agreement purporting to supersede or otherwise render ineffectual any federal, state, or
local law or regulation in existence as of the Effective Date, DEVELOPER shall perform its
obligations under such law or regulation as it existed on the Effective Date, or as otherwise
specifically directed by a court of competent jurisdiction.
9. MORTGAGEE PROTECTION.
The Parties hereto agree that this Agreement shall not prevent or limit DEVELOPER from
encumbering the Property or any portion thereof or any improvement thereon by any mortgage,
deed of trust or other security device securing financing with respect to the Property. CITY
acknowledges that the lenders providing such financing may require certain Agreement
interpretations and modifications and agrees upon request, from time to time, to meet with
DEVELOPER and representatives of such lenders to negotiate in good faith any such request for
interpretation or modification. Subject to compliance with Applicable Laws, CITY will not
unreasonably withhold its consent to any such requested interpretation or modification provided
CITY determines such interpretation or modification is consistent with the intent and purposes of
this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and
privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement
shall defeat, render invalid, diminish or impair the lien of any mortgage on the
Property made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee has submitted a request in writing
to the CITY in the manner specified herein for giving notices, shall be entitled to
receive written notification from CITY of any Default by DEVELOPER in the
performance of DEVELOPER’s obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a
copy of any notice of Default given to DEVELOPER under the terms of this
Agreement, CITY shall make a good faith effort to provide a copy of that notice to
the Mortgagee within ten (10) days of sending the notice of Default to
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DEVELOPER. The Mortgagee shall have the right, but not the obligation, to cure
the Default during the remaining cure period allowed such Party under this
Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any
part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu
of such foreclosure, shall take the Property, or part thereof, subject to the terms of
this Agreement. However, no Mortgagee (including one who acquires title or
possession to the Property, or any portion thereof, by foreclosure, trustee’s sale,
deed in lieu of foreclosure, lease termination, eviction or otherwise) shall have any
obligation to construct or complete construction of improvements, or to guarantee
such construction or completion; provided, however, that a Mortgagee shall not be
entitled to develop the Property or receive any benefit provided under this
Agreement unless it first agrees in writing to fully comply with this Agreement and
the Development Plan.
10. MISCELLANEOUS PROVISIONS.
10.1 Option to Terminate Due to Litigation. If a lawsuit is filed challenging the
Development Approvals or the ordinance approving this Agreement within the time periods for
the filing of such lawsuits under the California Environmental Quality Act (Public Resources Code
section 21000 et seq.) or the State Planning and Zoning Law (Government Code section 65000 et
seq.), then the Parties shall meet and confer concerning the potential impact of the lawsuit on this
Agreement and the Development of the Project. Within thirty (30) days of such meeting, if
DEVELOPER determines that such litigation may have an unacceptable adverse impact on the
Project or its rights under this Agreement, DEVELOPER may in its discretion terminate this
Agreement by sending CITY a written notice of such termination, and the Parties shall be relieved
of any further obligations to this Agreement, to the extent that such obligations have not been
performed or have been incurred prior to such termination. DEVELOPER acknowledges and
agrees that if this Agreement is terminated, other than by court order, CITY shall have the option
to restore the General Plan, the Specific Plan, and zoning to the condition that existed prior to the
adoption of the Development Approvals or ordinance approving this Agreement. In no event,
however, shall DEVELOPER bring or cause to bring a lawsuit in any court against CITY to
invalidate any provision in this Agreement that would result in the ability of DEVELOPER to keep
the Development Approvals without having to comply with the terms and conditions of this
Agreement.
10.2 Recordation of Agreement. This Agreement shall be recorded with the County
Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code.
Amendments approved by the Parties, and any termination, shall be similarly recorded.
10.3 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties, and there are no oral or written representations,
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly referred to herein. No testimony or evidence of any such representations, understandings
or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine
the terms or conditions of this Agreement.
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10.4 Estoppel Certificate. Any Party hereunder may, at any time, deliver written notice
to any other Party requesting such Party to certify in writing that, to the best knowledge of the
certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Party;
(ii) this Agreement has not been amended or modified either orally or in writing, or if so amended,
identifying the amendments; and (iii) the requesting Party is not in Default in the performance of
its obligations set forth in this Agreement or, if in Default, to describe therein the nature and
amount of any such Defaults. A Party receiving a request hereunder shall execute and return such
Certificate within sixty (60) days following the receipt thereof. Any third party including a
Mortgagee shall be entitled to rely on the Certificate.
10.5 Severability. If any term, provision, covenant, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions of this Agreement shall continue in full force and effect, unless and to the extent the
rights and obligations of any Party has been materially altered or abridged by such holding.
10.6 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of California.
Any dispute between CITY and DEVELOPER over this Agreement shall be filed, and tried, in the
Superior Court of the County of Riverside. This Agreement shall be construed as a whole
according to its fair language and common meaning to achieve the objectives and purposes of the
Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against
the drafting Party or in favor of CITY shall not be employed in interpreting this Agreement, each
of the Parties having been represented by counsel in the negotiation and preparation hereof.
10.7 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
10.8 Singular and Plural. As used herein, the singular of any word includes the plural.
10.9 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element.
10.10 Waiver. Failure of a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon
the Default of the other Party, shall not constitute a waiver of such Party’s right to insist and
demand strict compliance by the other Party with the terms of this Agreement thereafter.
10.11 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit for the Parties and their successors and assigns. No other Person shall
have any right of action based upon any provision of this Agreement.
10.12 Force Majeure. Subject to the limitations set forth below, the Term of this
Agreement and the time within which any Party shall be required to perform any act under this
Agreement shall be extended by a period of time equal to the number of days during which
performance of such act is delayed unavoidably and beyond the reasonable control of the Party
seeking the delay by: strikes; acts of God; unusually severe weather, but only to the extent that
such weather or its effects (including, without limitation, dry out time) result in delays that
cumulatively exceed twenty (20) days for any winter season occurring after commencement of
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construction of the Project; failure or inability to secure materials or labor in a commercially
reasonable manner by reason of a new priority or new regulations or order of any governmental or
regulatory body; a declaration of emergency as a result of a public health issue, including the
occurrence of any pandemic; changes in local, state, or federal laws or regulations that render
performance commercially infeasible; any development moratorium or any action of other public
agencies that regulate land use, development, or the provision of services and that unreasonably
prevents, prohibits, or delays construction of the Project due to circumstances beyond
DEVELOPER’s control, including without limitation any extension authorized by Government
Code Section 66463.5(d); enemy action; civil disturbances; wars; terrorist acts; fire; unavoidable
casualties; referenda; or mediation, arbitration, litigation, or other administrative or judicial
proceeding commenced by a third party and involving the Development Approvals or Subsequent
Development Approvals or this Agreement (each a “Force Majeure Delay”). An extension of
time shall be for the period of the enforced delay and shall commence to run from the time of the
commencement of the cause, if written notice by the Party claiming such extension is sent to the
other Parties within thirty (30) days of the commencement of the cause. If written notice is sent
after such thirty (30) day period, then the extension shall commence to run no sooner than thirty
(30) days prior to the giving of such notice. The cumulative extensions of time for Force Majeure
Delays for individual performance obligations hereunder shall not exceed five (5) years, and the
cumulative extensions of the expiration of this Agreement as a result of Force Majeure Delays
shall not exceed two (2) years, unless otherwise agreed to in writing in accordance with Section
10.13.
10.13 Extension of Time Limits. The time limits set forth in this Agreement may be
extended by mutual consent in writing of the Parties without amendment to this Agreement.
Except as otherwise specified in this Agreement, each Party may agree or refuse to agree to any
extension of time in its sole and absolute discretion.
10.14 Mutual Covenants. The covenants contained herein are mutual covenants and also
constitute conditions to the concurrent or subsequent performance by the Party benefited thereby
of the covenants to be performed hereunder by such benefited Party.
10.15 Successors in Interest. As provided in Section 65868.5 of the Government Code,
and except as otherwise provided in this Agreement, all of the terms, provisions, covenants and
obligations contained in this Agreement shall be binding upon, and inure to the benefit of, CITY
and DEVELOPER, and their respective successors and assigns. In no event shall this Agreement
impose obligations on Individual Unit Owners. From and after the date that certificates of
occupancy have been issued (or a final inspection is completed when no certificate of occupancy
is required) for all buildings and improvements to be constructed on a parcel within the Project (or
with respect to a single-family dwelling unit on a single-family residential lot), such parcel shall
not be burdened with the obligations of DEVELOPER under this Agreement.
10.16 Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if each of the Parties
had executed the same instrument.
10.17 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by any Party hereto for the purpose of enforcing, construing or determining
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the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the
County of Riverside, State of California, and the Parties hereto waive all provisions of law
providing for the filing, removal or change of venue to any other court.
10.18 Project as a Private Undertaking. It is specifically understood and agreed by and
between the Parties hereto that the Development of the Project is a private Development, that
neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and DEVELOPER is that of a government entity
regulating the Development of private property and the owner of such property.
10.19 Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either Party at any time, the other Party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such required instruments
and writings and take any actions as may be reasonably necessary under the terms of this
Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or
consummate the transactions contemplated by this Agreement.
10.20 Eminent Domain. No provision of this Agreement shall be construed to limit or
restrict the exercise by CITY of its power of eminent domain.
10.21 Amendments in Writing/Cooperation. This Agreement may be amended only
by written consent of both Parties specifically approving the amendment and in accordance with
the Government Code provisions for the amendment of Development Agreements. The Parties
shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent
and application of this Agreement, and shall treat any such proposal on its own merits, and not as
a basis for the introduction of unrelated matters.
10.22 Authority to Execute. The Person or Persons executing this Agreement on behalf
of DEVELOPER warrants and represents that he/they have the authority to execute this Agreement
on behalf of his/their corporation, partnership or business entity and warrants and represents that
he/they has/have the authority to bind DEVELOPER to the performance of its obligations
hereunder.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day
and year first set forth above.
[Signatures Attached]
10.10.b
Packet Pg. 224 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
27
CITY: CITY OF MENIFEE
By
Mayor
ATTEST:
By
City Clerk
APPROVED AS TO FORM:
By
City Attorney
(SEAL)
DEVELOPER: KELCO PROPERTIES,
LLC, a California limited
liability company.
By
Title
By
Title
By
Title
PLATINUM PROPERTIES, LLC, a
California limited liability
company.
By
Title
By
Title
By
10.10.b
Packet Pg. 225 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
28
Title
10.10.b
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29
STATE OF CALIFORNIA )
) ss:
COUNTY OF )
On ______________, 2020 before me, _____________________________________________
Notary Public (insert name and title of the officer),
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and 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: _______________________________________
[Seal]
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
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EXHIBIT A
-1-
EXHIBIT A
Legal Description of the Property
THE SUBJECT PROPERTY IS SITUATED IN THE CITY OF MENIFEE, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
ASSESSOR PARCEL NO. 360-380-002:
THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 15, TOWNSHIP 6 SOUTH,
RANGE 3 WEST, SAN BERNARDINO AND MERIDIAN, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF SAID
SECTION 15; THENCE NORTH 0° 20’ WEST, ALONG THE WEST LINE OF SAID
SOUTHEAST QUARTER, 495 FEET; THENCE SOUTH 89° 55’ EAST, PARALLEL WITH
THE SOUTH LINE OF SAID SOUTHEAST QUARTER, 743.65 FEET; THENCE SOUTH 0°
20’ EAST, PARALLEL WITH THE WEST LINE OF SAID SOUTHEAST QUARTER, 495
FEET TO A POINT ON THE SOUTH LINE OF SAID SOUTHEAST QUARTER; THENCE
NORTH 89° 55’ WEST, ALONG SAID SOUTH LINE, 748.65 FEET TO THE POINT OF
BEGINNING. EXCEPTING THEREFROM THE SOUTHERLY RECTANGULAR 30 FEET AS
CONVEYED TO THE COUNTY OF RIVERSIDE, BY DEED RECORDED SEPTEMBER 7,
1948 IN BOOK 1009 PAGE 227 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA.
ASSESSOR PARCEL NO. 360-380-007:
THAT PORTION OF PARCEL 1, LOT “A” AND A PORTION OF LOT “B” OF PARCEL MAP
NO. 10,610 AS SHOWN BY MAP ON FILE IN BOOK 58, PAGE 76 OF PARCEL MAPS,
RECORDS OF RIVERSIDE COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT
THE SOUTH ONE-QUARTER CORNER OF SECTION 15, TOWNSHIP 6 SOUTH, RANGE 3
WEST, SAN BERNARDINO MERIDIAN, SAID QUARTER CORNER BEING A POINT ON
THE CENTER LINE OR SCOTT ROAD; THENCE SOUTH 89° 54’ 46” EAST ALONG SAID
CENTER LINE OF SCOTT ROAD, A DISTANCE OF 748.65 FEET TO THE TRUE POINT OF
BEGINNING; THENCE NORTH 0° 20’ 43” WEST PARALLEL TO THE NORTH- SOUTH
CENTER OF SECTION LINE A DISTANCE OF 495.00 FEET; THENCE SOUTH 89° 54’ 46”
EAST PARALLEL TO SAID CENTER LINE OF SCOTT ROAD, A DISTANCE OF 570.98
FEET TO A POINT ON THE CENTER LINE OF HAUN ROAD BEARING SOUTH 0° 19’ 48”
EAST 2133.29 FEET FROM THE CENTER LINE INTERSECTION OF HAUN ROAD AND
WICKERD ROAD; THENCE SOUTH 0° 19’ 48” EAST ALONG SAID CENTER LINE, A
DISTANCE OF 495.00 FEET TO THE CENTER LINE INTERSECTION OF HAUN ROAD
AND SCOTT ROAD; THENCE NORTH 89° 54’ 46” WEST ALONG SAID CENTER LINE OF
SCOTT ROAD, A DISTANCE OF 570.85 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA BY DEED RECORDED APRIL 2, 1973, AS INSTRUMENT NO. 41166,
RECORDS OF RIVERSIDE COUNTY.
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EXHIBIT A
-2-
ASSESSOR PARCEL NO. 360-380-009:
PARCEL A OF LOT LINE ADJUSTMENT NO. LLA 17-008 PER DOCUMENT RECORDED
MARCH 20, 2018 AS INSTRUMENT NO. 2018-0104555 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY.
ASSESSOR PARCEL NO. 360-380-010:
PARCEL B OF LOT LINE ADJUSTMENT NO. LLA 17-008 PER DOCUMENT RECORDED
MARCH 20, 2018 AS INSTRUMENT NO. 2018-0104555 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY.
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EXHIBIT B
-1-
EXHIBIT B
Map Showing Property and Its Location
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EXHIBIT B
-2-
10.10.b
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EXHIBIT C
-1-
EXHIBIT C
Development Plan
The Development Plan under the Agreement is the plan for the Development1 of the Property, as
set forth in and regulated by the Development Approvals, planning and zoning standards,
regulations, applicable conditions of approval, and criteria for the Development of the Property,
all as contained in the following:2
1. The Menifee General Plan
2. Title 9, Planning and Zoning, of the Menifee Municipal Code
3. Menifee Municipal Code Chapter 8.26, Grading Regulations
4. Title 7, Subdivisions, of the Menifee Municipal Code
5. The Design Guidelines of the City of Menifee, adopted by the Menifee City Council on
April 15, 2020.
6. Plot Plan No. 2017-287 (“Plot Plan”) proposes the construction of 268,393 sq. ft. of retail
commercial buildings, including a 157,844 sq. ft. Anchor Building with gas station,
123,770 sq. ft., 5-story hotel (135 rooms), and a two-phase 304-unit (390-bed) senior
assisted living, independent living and memory care facility on 54.01 gross acres, adopted
by the City Council of the City of Menifee on ________________ and provides the
required contents of a Development Plan in compliance with Government Code section
65865.2. The Plot Plan specifically contemplates and requires that the retail commercial
buildings on the Property would cover 33.11 gross acres of the total Property, and would
consist of the following: (i) Shops 1 (8,600 sq. ft.); (ii) Shops 2 (9,000 sq. ft.); (iii) Shops
3 (9,900 sq. ft.); (iv) Shops 4 (6,600 sq. ft.); (v) Shops 5 (10,800 sq. ft.) (with a site plan
option to instead construct a 9,000 sq. ft. facility with a drive through); (vi) Shops 6 (9,600
sq. ft.); (vii) Fitness Center (37,000 sq. ft.); (viii) Pad 1 Restaurant (7,721 sq. ft.); (ix) Pad
2 Restaurant (5,560 sq. ft.); (x) Pad 3 Restaurant (2,368 sq. ft.); (xi) Pad 4 Restaurant 3,400
sq. ft.); (xii) Anchor Building with gas station (157,844 sq. ft.). In addition, a hotel will
cover 4.29 gross acres of the Property, a senior living facility will cover 12.88 gross acres
of the Property and will consist of a two-phase 304-unit (390-bed) senior assisted living,
1 All capitalized terms used in this Exhibit C shall have the meaning assigned to those terms in
the Junction Development Agreement, to which this Exhibit C is attached.
2 Under Section 3.2 of the Agreement, except as otherwise provided in the Agreement, those
portions of the items listed on Exhibit C that govern permitted uses of the Property, the density
and intensity of use of the Property, the maximum height and size of proposed buildings, and the
design, improvement and construction standards and specifications applicable to Development of
the Property, shall govern the Development of the Property.
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EXHIBIT C
-2-
independent living, and memory care facility; the Property consists of a total of 54.01 gross
acres.
7. Conditional Use Permit 2018-288 authorizing, subject to the conditions contained therein,
the gas station and senior living uses depicted on the Plot Plan
8. The Mitigation Measures identified in Exhibit D.
9. All other ordinances, resolutions, codes, rules, regulations, CITY adopted plans and official
policies of CITY adopted and effective on or before the Effective Date governing
Development and use of land, including, without limitation, the permitted use of land, the
density or intensity of use, subdivision requirements, the maximum height and size of
proposed buildings, the provisions for reservation or dedication of land for public purposes,
and the design, improvement and construction standards and specifications applicable to
the Development of the Property.
10. Variances, conditional use permits, master plans, public use permits, and plot plans that
constitute Subsequent Development Approvals.
COMPLETE COPIES OF THE DEVELOPMENT PLAN ARE ON FILE WITH THE CITY
CLERK.
10.10.b
Packet Pg. 233 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
916/031858-0003 15091031.1 a05/21/20 EXHIBIT C-1 -1- EXHIBIT C-1 Site Plan 10.10.bPacket Pg. 234Attachment: Development Agreement [Revision 1] (2556 : The Junction)
916/031858-0003 15091031.1 a05/21/20 EXHIBIT C-1 -2- 10.10.bPacket Pg. 235Attachment: Development Agreement [Revision 1] (2556 : The Junction)
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EXHIBIT D
-1-
EXHIBIT D
Mitigation Measures
10.10.b
Packet Pg. 236 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 1
MITIGATION MONITORING/REPORTING PLAN
A. INTRODUCTION
Section 21081.6 of the Public Resources Code requires a Lead Agency to adopt a
“reporting or monitoring program for the changes made to the project or conditions of
project approval, adopted in order to mitigate or avoid significant effects on the
environment” (Mitigation Monitoring Program, Section 15097 of the CEQA Statute and
Guidelines provides additional direction on mitigation monitoring or reporting). The City
of Menifee is the Lead Agency for the Junction at Menifee Valley Project (the “Project”).
An Environmental Impact Report (EIR No. 495) and Addendum to EIR No. 495 have been
prepared to address the potential environmental impacts of the Project. Where
appropriate, these environmental documents identified Project design features or
recommended mitigation measures to avoid or to reduce potentially significant
environmental impacts of the Project. This Mitigation Monitoring/Reporting Plan (MMRP)
is designed to monitor implementation of the mitigation measures identified for the
Project. The MMRP is subject to review and approval by the Lead Agency as part of the
certification of the EIR and adoption of project conditions. The required mitigation
measures are listed and categorized by impact area, as identified in the Addendum to
EIR No. 495, with an accompanying identification of the following:
• Monitoring Phase, the phase of the project during which the mitigation measure
shall be monitored;
o Pre-Construction, including the design phase
o Construction
o Pre-Occupancy (prior to issuance of a Certificate of Occupancy)
o Occupancy (post-construction)
• Enforcement Agency, the agency with the power to enforce the mitigation
measure; and
• Monitoring Agency, the agency to which reports including feasibility, compliance,
implementation, and development are made.
The Project Applicant shall be responsible for implementing all mitigation measures
unless otherwise noted.
B. MMRP
Aesthetics
MM IV.B-1
The following measures would reduce the project’s significant impact to scenic vistas:
• The proposed landscape plan shall be prepared to include landscape screening
throughout the project site to further screen the proposed project from off-site
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Packet Pg. 237 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 2
views. Landscaping shall be provided on the eastern side of the project site in order
to screen the project from the scenic highway corridor.
• The use of screen plantings which include coast live oak, holly oak, white willow,
and afghan pine shall be employed so that the resulting visual characteristics are
compatible with their surroundings.
• The landscape plan shall be subject to review and approval by Project Review staff
prior to issuance of building permits.
• Colors used for exterior building surfaces shall match the hue, lightness, and
saturation of colors of the immediately surrounding trees and vegetation. Several
colors matching those of the surrounding trees and vegetation shall be used in
order to minimize uniformity.
• Prior to building permit issuance, the grading plan, development plan, landscaping
plan, sign plan, elevations, and colors and materials shall receive review and
approval of the City of Menifee Community Development Department.
• The landscaping plan shall preserve and incorporate native materials such as
rocks.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.B-2
Prior to issuance of the Building permit, an exterior lighting plan shall be submitted for
review and approval by the City of Menifee Community Development Department. The
lighting plan shall include but not necessarily be limited to the following:
• Proposed project lighting would follow the City of Menifee Dark Sky Ordinance
Number 2009-024.
• The exterior lighting plan shall show all potential light sources with the types of
lighting and their locations.
• Typical lighting shall include low mounted, downward casting and shielded lights
that do not cause spillover onto adjacent properties and the utilization of motion
detection systems where applicable.
• No flood lights shall be utilized.
• Lighting shall not "wash out" structures or any portions of the site.
• Lighting shall be limited to the areas that would be in operation during nighttime
hours.
• Low intensity, indirect light sources shall be encouraged.
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City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 3
• On-demand lighting systems shall be encouraged.
• Mercury, sodium vapor, and similar intense and bright lights shall not be permitted
except where their need is specifically approved and their source of light is
restricted.
• All light sources shall be fully shielded from off-site view.
• All buildings and structures shall consist of non-reflecting material or be painted
with non-reflective paint.
• Light fixtures shall not be located at the periphery of the property, unless, due to
safety or other concerns, the City of Menifee Community Development Department
specifically approves light fixtures on the periphery, and these light fixtures are
properly shielded from sensitive receptors. Also, light fixtures shall shut off
automatically when the use is not operating. Security lighting visible from the
highway shall be motion-sensor activated.
• All lighting shall be installed in accordance with building codes and the approved
lighting plan during construction.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
Air Quality
MM IV.D-1
In order to reduce the release of ROGs to the atmosphere during architectural coating
applications, all architectural coatings used shall have a VOC content of 50 grams per
liters or less.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
MM IV.D-2
The Project applicant shall include in construction contracts the control measures
required and/or recommended by the SCAQMD at the time of development, including but
not limited to the following:
Rule 403 - Fugitive Dust
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City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 4
• Use watering to control dust generation during demolition of structures or break-
up of pavement;
• Water active grading/excavation sites and unpaved surfaces at least three times
daily;
• Cover stockpiles with tarps or apply non-toxic chemical soil binders;
• Limit vehicle speed on unpaved roads to 15 miles per hour;
• Sweep daily (with water sweepers) all paved construction parking areas and
staging areas;
• Provide daily clean-up of mud and dirt carried onto paved streets from the Site;
• Suspend excavation and grading activity when winds (instantaneous gusts)
exceed 15 miles per hour over a 30-minute period or more; and,
• An information sign shall be posted at the entrance to each construction site that
identifies the permitted construction hours and provides a telephone number to call
and receive information about the construction project or to report complaints
regarding excessive fugitive dust generation. Any reasonable complaints shall be
rectified within 24 hours of their receipt.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Engineering/Public Works Department
City of Menifee Community Development Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
City of Menifee Community Development Department
MM IV.D-3
All spaces utilizing refrigerated storage, including restaurants and food or beverage
stores, shall provide an electrical hookup for refrigeration units on delivery trucks.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
10.10.b
Packet Pg. 240 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 5
MM IV.D-4
Within the Project parking lots, the following features shall be provided:
• Electric vehicle (“EV”) charging facilities for designated parking spaces;
• Preferential parking locations for EVs and Compressed Natural Gas vehicles; and
• Preferential parking for carpool/vanpool vehicles.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
MM IV.D-5
Within the Project, the following shall be provided:
• Subsidies or incentives to employees who use public transit or carpooling,
including preferential parking.
• Secure, weather-protected bicycle parking for employees.
• Showers and lockers for employees bicycling or walking to work.
• A display case or kiosk displaying public transportation information in a prominent
area accessible to employees or site visitors.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
MM IV.D-6
Restrict delivery truck operation to 2007 or newer model years.
Monitoring Phase: Construction/Pre-Occupancy/Occupancy
(Measure to be included in Project CC&Rs)
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Community Development Department
10.10.b
Packet Pg. 241 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 6
MM IV.D-7
Prior to the issuance of grading permits, the owner/permittee shall submit an accelerated
construction dust abatement management program to the City of Menifee Community
Development Department. This involves developing a dust control program to supplement
the routine watering that constitutes the best available control measures (BACMSs) in
excess of any minimum SCAQMD Rule 403 requirements. BACMs shall include, but not
be limited to the following:
a) Hydroseeding previously disturbed areas while awaiting construction;
b) Adding chemical binders or surfactants (according to manufacturer’s
specifications) to all inactive construction areas or previously graded areas that
remain inactive for four or more days;
c) Early paving or chip sealing of roads;
d) Enforcing reduced travel speeds (15 mph) in unpaved areas;
e) Installation of sand fences and perimeter sandbags;
f) Watering for dust control during clearing, grading and construction; and
g) Soil disturbance should be terminated when high winds (25 mph) make dust
control extremely difficult.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Engineering/Public Works Department
City of Menifee Community Development Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
City of Menifee Community Development Department
MM IV.D-8
All off-road construction equipment greater than 50 hp shall meet USEPA Tier 4 emission
standards to reduce NOx, PM10, and PM2.5 emissions at the Project site. In addition, all
construction equipment shall be outfitted with Best Available Control Technology devices
certified by CARB. Any emissions control device used by the contractor shall achieve
emissions reductions that are no less than what could be achieved by a Level 3 diesel
emissions control strategy for a similarly sized engine as defined by CARB regulations.
At the time of mobilization of each applicable unit of equipment, a copy of each unit’s
certified tier specification, BACT documentation, and CARB or SCAQMD operating permit
shall be provided.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Engineering/Public Works Department
City of Menifee Community Development Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
City of Menifee Community Development Department
10.10.b
Packet Pg. 242 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 7
Biological Resources
MM IV.E-1
The results of the “Revised Jurisdictional Determination for a 50.95 Acre Property in
Menifee, CA” dated 28 February 2020; “Revised DBESP” dated 28 February 2020 (with
DBESP Addendum Clarification Memo” dated 19 May 2020); and “Revised Consistency
Analysis Including Evaluation of MSHCP-Defined Section 6.1.2 Riparian/Riverine and
Vernal Pool Areas within the Approximate 50.95 Acre Property” dated 28 February 2020,
undertaken in order to confirm that existing site conditions have not changed since the
time of the 2006 riparian/riverine survey, shall be reported to the City of Menifee
Community Development Department. The following permits (or exemptions) shall be
requested from the respective resource agency, and any associated conditions of
approval shall be agreed upon, prior to the initiation of ground disturbing activities:
• Clean Water Act Section 404 Permit from the Corps;
• Streambed Alteration Agreement under Section 1600 of the Fish and Game Code
from CDFG;
• Clean Water Act Section 401 Water Quality Certification from the RWQCB; and
• Corps, CDFG, RWQCB, and City of Menifee Community Development Department
agreement of the Detailed Mitigation Plan.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.E-2
Nesting Birds
• Conduct vegetation removal associated with construction from September 1st through
January 31st, when birds are not nesting. Initiate grading activities prior to the
breeding season (which is generally February 1st through August 31st) and keep
disturbance activities constant throughout the breeding season to prevent birds from
establishing nests in surrounding habitat (in order to avoid possible nest
abandonment); if there is a lapse in activities of more than five days, pre-construction
surveys shall be necessary as described in the bullet below.
OR
• If tree and vegetation removal activities occur during the nesting season, a qualified
biologist shall conduct a pre-construction nesting bird survey. The results of the survey
shall be submitted to the City of Menifee Community Development Department for
review and approval. The qualified wildlife biologist shall conduct weekly pre-
construction bird surveys no more than 30 days prior to initiation of grading to provide
10.10.b
Packet Pg. 243 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 8
confirmation on the presence or absence of active nests in the vicinity (at least 300 to
500 feet around the individual construction site, as access allows). The last survey
should be conducted approximately no more than three days prior to the anticipated
initiation of clearance/construction work. If active nests are encountered, clearing and
construction in the vicinity of the nests shall be deferred until the young birds have
fledged and there is no evidence of a second attempt at nesting. A minimum buffer of
300 feet (500 feet for raptor nests) or as determined by a qualified biologist shall be
maintained during construction depending on the species and location. The perimeter
of the nest-setback zone shall be fenced or adequately demarcated with staked
flagging at 20-foot intervals, and construction personnel and activities restricted from
the area. Construction personnel should be instructed on the sensitivity of the area.
A survey report by the qualified biologist documenting and verifying compliance with
the mitigation and with applicable state and federal regulations protecting birds shall
be submitted to the City of Menifee Community Development Department for review
and approval prior to grading permit issuance. The qualified biologist shall serve as a
construction monitor during those periods when construction activities would occur
near active nest areas to ensure that no inadvertent impacts on these nests would
occur.
Burrowing Owl
• Pursuant to Objective 6 and Objective 7 of the Species Account for the Burrowing Owl
included in the Western Riverside County Multiple Species Habitat Conservation Plan,
within thirty (30) days prior to the issuance of a grading permit, a pre-construction
presence/absence survey for the burrowing owl shall be conducted by a qualified
biologist and the results of this presence/absence survey shall be provided in writing
to the City of Menifee Community Development Department. If it is determined that
the Project Site is occupied by the Burrowing Owl, take of "active" nests shall be
avoided pursuant to the MSHCP and the Migratory Bird Treaty Act. However, when
the Burrowing Owl is present, relocation outside of the nesting season (March 1
through August 31) by a qualified biologist shall be required. The City shall be
consulted to determine appropriate type of relocation (active or passive) and
translocation sites. Occupation of this species on the project site may result in the
need to revise grading plans so that take of "active" nests is avoided or alternatively,
a grading permit may be issued once the species has been actively relocated. If the
grading permit is not obtained within thirty (30) days of the survey a new survey shall
be required. No ground disturbance, including disking, blading, grubbing or any similar
activity (except for agricultural production on-site which has been a historic and on-
going use of the property) shall occur within the site until the burrowing owl study is
reviewed and approved.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
10.10.b
Packet Pg. 244 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 9
MM IV.E-3
To offset the permanent loss of 0.32 acre of Riparian/Riverine resources, the Project
Applicant shall purchase mitigation credits at the Riverpark Mitigation Bank at a required
mitigation ratio of 2:1 for purchase of Re-establishment Credit (total 0.64 acre). Should
Re-establishment Credit not be available for purchase at the time the Project is
undertaken, then Rehabilitation Credit shall be purchased at the following ratios: 2.5:1 for
impacts to the vegetated stream (2.5 x 0.26 = 0.65 acre) as well as 2:1 for impacts to the
unvegetated riverine areas which consist of Feature 2 and the Haun Road intake area
(2.0 x 0.06 = 0.12 acre) for a total of 0.77 acre of Rehabilitation Credit at the Riverpark
Mitigation Bank. All mitigation associated with impacts to riparian/riverine habitat, as
defined by Section 6.1.2 and the associated DBESP, shall be reviewed and approved by
the City of Menifee Community Development Department, as well as the Corps, CDFW,
and RWQCB, prior to the issuance of a grading permit.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.E-4
Prior to the issuance of grading permits, the Project Applicant shall make the appropriate
mitigation fee payment into the MSHCP Stephens’ kangaroo rat fee payment program for
conservation of Stephens’ kangaroo rat-occupied habitats in order to offset the loss of
potentially suitable Stephens’ kangaroo rat habitat on-site through Project
implementation.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.E-5
Prior to Project occupancy, the Project Applicant shall make the appropriate MSHCP
mitigation fee payment that will contribute to conservation and management of
conservation land for all MSHCP-covered organisms. This fee is based on City of Menifee
Ordinance No. 810. The land types will include residential density greater than fourteen
dwelling units per acre and commercial development.
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
10.10.b
Packet Pg. 245 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 10
MM IV.E-6
In accordance with MSHCP provisions limiting the use of exotic and invasive plant
species, the Project’s landscape plan shall exclude invasive species such as crimson
fountain grass (Pennisetum setaceum), pampas grass (Cortaderia selloana), giant reed
(Arundo donax), and tree of heaven (Ailanthus altissima).
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.E-7
All grading and construction contractors shall receive copies of all mitigation measures
required to reduce impacts to biological resources. Additionally, verbal instruction shall
be provided by the Project biologist to all site workers to insure clear understanding that
biological resources are to be protected on the Project site in accordance with the
mitigation measures. A brochure depicting the regulatory status biological resources on-
site shall be provided to all grading and construction contractors.
Monitoring Phase: Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
Cultural Resources
MM IV.G-1
ARCHAEOLOGIST RETAINED. During grading operations, the archaeologist or the
archaeologist's on-site representative(s) and the Native American tribal representative(s)
shall actively monitor all project related grading and shall have the authority to temporarily
divert, redirect, or halt grading activity to allow recovery of archaeological and/or cultural
resources. Prior to the issuance of grading permits, a copy of a fully executed contract for
archaeological monitoring and mitigation services, including the NAME, ADDRESS and
TELEPHONE NUMBER of the retained archaeologist shall be submitted to the City
Community Development Department and the Engineering Division. The extent of the
monitoring will be determined after the grading plan has been finalized.
Tribal monitor(s) shall be required on-site during all ground disturbing activities, including
grading, stockpiling of materials, engineered fill, rock crushing, etc. The land
divider/permit holder shall retain a qualified tribal monitor(s) from the Pechange Band of
Luiseno Indians and the Soboba Band of Luiseno Indians. Prior to issuance of a grading
permit, the developer shall submit a copy of a signed contract between the above-
mentioned Tribe and the land divider/permit holder for the monitoring of the project to the
Community Development Department and to the Engineering Department. The Native
American Monitor(s) shall have the authority to temporarily divert, redirect, or halt the
10.10.b
Packet Pg. 246 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 11
ground disturbance activities to allow recovery of cultural resources, in coordination with
the Project Archaeologist. Should an agreement between the Tribes and the
Applicant/Permittee not be established within 45 days of the date the Applicant/Permittee
initiates such an agreement with the Tribes, Native American monitoring shall not be
required.
The Developer shall relinquish ownership of all cultural resources, including all
archaeological artifacts that are of Native American origin, found in the project area for
proper treatment and disposition. The Applicant/Permittee shall be responsible for all
curation costs.
Although the previously unrecorded milling feature site 33-28615, discovered during the
updated Phase II Historical Resources Investigation was not considered significant under
either the California Register or the National Register, it is recommended that monitoring
of all earthmoving activities associated with development of the Senior housing element
of The Junction at Menifee Valley, encompassing approximately +28.0 acres in the
northwestern corner of the Project site, be conducted by a qualified archaeologist and a
professional Tribal monitor. A Cultural Resources Monitoring Plan and monitoring
agreements with the archaeologist and appropriate Tribe should be submitted prior to
issuance of a grading permit. A Phase IV Monitoring Report should be required prior to
final grading clearance.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-3
TANK HOUSE DOCUMENTATION. Prior to grading permit issuance, the tank house shall
be documented with measured drawings of each façade. The drawings shall conform in
size and scale to those of the Phase II Historical Resources Investigation. A copy of the
drawings (prepared by a qualified Architect and aided by a qualified Archeologist) shall
be submitted to the Community Development Department and the Historical Preservation
Officer for review and approval.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-4
DEMOLITION VIDEO. Prior to dismantling the rock water heater, inscribed rock wall, and
chimney, a voice-narrated demolition video shall be produced that identifies buildings and
features of the Bailey farmstead compound. Demolition of all buildings and structures
shall also be recorded on the video by a qualified Archeologist, serving as the final site
10.10.b
Packet Pg. 247 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 12
documentation. A copy of the video shall be submitted to the Community Development
Department and the Historical Preservation Officer for review and approval.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-5
STONE WORK DISMANTLING. Prior to grading permit issuance, the rock water heater,
inscribed rock wall, and chimney shall be dismantled and then removed to an off-site
secured storage facility until which time they can be reconstructed in the site plaza.
a. All components of the water heater shall be labeled and photographed in
situ prior to dismantling. The photographs shall be cross-referenced with
AutoCAD drawings made prior to vandalism in order to facilitate accurate
reconstruction of the feature. Inscribed water heater elements shall be
removed intact to ensure preservation.
b. The section of rock wall that is inscribed shall be removed intact from the
site to ensure preservation. Rocks comprising the remainder of the rock wall
shall be dismantled and removed to the storage facility.
c. The rock chimney shall be dismantled and removed to the storage facility.
A report shall be prepared that includes a detailed plan that identifies the following: 1.)
specific location where salvage materials will be kept until building activities, and 2.)
responsible entities and/or individuals that will keep such materials. A copy of the report
shall be submitted to the Community Development Department and the Historical
Preservation Officer for review and approval.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-6
MVHA COLLECT CULTURES. Prior to grading permit issuance and upon receipt of
requisite hold-harmless documents, the Menifee Valley Historical Association shall be
given an opportunity to visit the Bailey farmstead under supervision to collect cultural
resources for future use in their planned museum. A certified letter shall be sent to the
Menifee Valley Historical Association (MVHA) giving a 30-day opportunity to visit the
farmstead to collect cultural resources of historic nature. All of their activities shall be
supervised by a qualified Archeologist. A copy of this letter shall be sent simultaneously
to the Community Development Department and the Historical Preservation Officer.
10.10.b
Packet Pg. 248 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 13
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-7
BAILEY’S COMPLEX DEMO REPORT. Prior to grading permit issuance, a detailed report
shall be prepared by a qualified archeologist that incorporates all the demolition activities,
including but not limited to: demolition permit numbers, tankhouse documentation,
demolition video, rock water heater dismantling, historical rock wall dismantling, chimney
dismantling, specific location where salvage materials will be kept until building activities
occur, and responsible entities and/or individuals that will keep such materials.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-8
BAILEY’S INADVERTENT FIND. Should a subsurface cultural deposit be discovered
during demolition and/or earthmoving, said activities shall be halted or diverted until the
resources can be evaluated.
a. All subsurface cultural deposit soil shall be screened through 1/8” mesh and
recovered cultural resources placed in labeled containers for removal from
the site.
b. Recovered subsurface cultural resources shall be analyzed and a report of
findings shall be prepared as an addendum to the Phase II Historical
Resources Investigation.
All building demolition and earthmoving activities within the Bailey farmstead compound
shall be monitored by Dr. Jean A. Keller (Cultural Resources Consultant) or another
qualified Archaeologist. In addition, all earthmoving activities conducted on farmland
surrounding the Bailey Farmstead shall be monitored by a qualified Archaeologist. In the
event that an inadvertent find is discovered, the Community Development Department
and the City’s Archeologist shall be notified. The City’s Archeologist will determine the
appropriate time to resume grading activities.
Monitoring Phase: Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
10.10.b
Packet Pg. 249 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 14
MM IV.G-9
HISTORICAL EXHIBIT DESIGN. Architectural elements representative of the Menifee
Valley Farming Era shall be incorporated in the entry statement and buildings of The
Junction at Menifee Valley.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-10
HISTORICAL DESIGN PLOT PLAN. Prior to building permit issuance, a Site Plaza shall
be developed as public outdoor space that will incorporate historical structures, offer an
interpretive exhibit and descriptive plaques depicting the historic Bailey farmstead, and
serve as a community gathering place, a target location for patrons of The Junction at
Menifee Valley. The Site Plaza shall be enhanced by benches, trees, and other attractive
landscaping.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-11
HISTORICAL EXHIBIT INSTALLATION. Prior to final inspection/occupancy, the tank
house shall be recreated, using new materials, as the centerpiece of the Site Plaza. An
historical exhibit shall be installed on the interior walls of the lower (open) section of the
recreated tank house. The Historical Preservation Officer shall monitor installation
completed by a qualified urban designer.
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-12
WATER HEATER RECONSTRUCT. Prior to final inspection/occupancy, the rock water
heater shall be reconstructed in the Site Plaza. With the exception of the iron cauldron
stolen by vandals, original materials from the water heater shall be used in the
reconstruction.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
10.10.b
Packet Pg. 250 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 15
MM IV.G-13
HISTORICAL WALL. Prior to final inspection/occupancy, stones salvaged from the rock
wall shall be used to build a version of the historical wall/fence that will enclose or define
the Site Plaza. The section of rock wall inscribed with the name of the builder, construction
date, and family initials will be integrated into the Site Plaza. The work shall be done by
a qualified Mason Contractor and aided by a qualified Archeologist.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-14
CHIMNEY RECONSTRUCTION. Prior to final inspection/occupancy, stones from the
dismantled Bailey House stone chimney shall be reconstructed and adapted as an
outdoor fireplace in the Site Plaza gathering area. Should Bailey family members request
retention of a portion of the chimney stones, the original stones may be supplemented
with similar stones to complete fireplace construction.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-15
HISTORICAL EXHIBIT DESIGN. Prior to final inspection/occupancy, an historical exhibit
on the interior walls of the lower (open) section of the recreated tank house shall be
created and installed. The exhibit’s primary focus shall be on appropriately mounted and
protected interpretive panels containing relevant images and text, although
representative artifacts may also be included in the exhibit. Suggested interpretive panels
include large photographs of the Bailey farmstead and members of the Bailey family
members, accompanied by minimal text explaining the Bailey family story and its place in
Menifee Valley history. Consultation with the Menifee Valley Historical Association and
Bailey family members shall guide creation of the interpretive exhibit.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-16
HISTORICAL PLAQUES DESIGN. Prior to Building Permit Issuance, a plan for
descriptive plaques for the recreated tank house, rock water heater, rock fireplace, and
inscribed rock wall shall be submitted to the Community Development Department for
review and approval. The plaques will provide context for the reconstructed historical
10.10.b
Packet Pg. 251 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 16
elements of the Bailey farmstead and shall be made of attractive durable material that will
enhance the ambience of the Site’s Plazas. Consultation with the Menifee Valley
Historical Association and Bailey family members will aid in the design of the descriptive
plaques. Prepare a detailed plan describing the following:
1. The total number of plaques;
2. The precise location of each plaque:
3. The dimensions of each plaque;
4. The text (narrative) for each plaque.
The plan shall be prepared by a qualified archaeologist and shall be in conformance with
the Phase II Cultural Resources Report. The plaques design requires concurrent approval
from the Community Development Department and Historical Preservation Officer.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-17
HISTORICAL PLAQUES INSTALL. Prior to final inspection/occupancy, descriptive
plaques shall be placed adjacent to the recreated tank house, rock water heater, rock
fireplace, and inscribed rock wall. The plaques shall provide context for the reconstructed
historical elements of the Bailey farmstead and shall be made of attractive durable
material that will enhance the ambience of the Site Plaza. Consultation with the Menifee
Valley Historical Association and Bailey family members shall aid in the design of the
descriptive plaques. A detailed plan shall be prepared describing the following: the total
number of plaques, the precise location of each plaque, the dimensions of each plaque
and the text (narrative) for each plaque. The plan shall be prepared by a qualified
Archeologist and shall be in conformance with the Phase II Cultural Resources Report.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-18
HISTORICAL DESIGN COMPLIANCE. Prior to occupancy, the Community Development
Department shall inspect all buildings, landscaping and historical design elements to
verify that the project is in substantial conformance with the approved Exhibits B and A.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
10.10.b
Packet Pg. 252 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 17
MM IV.G-19
ARCHEO MONITORING REPORT. Prior to Final Inspection, the applicant shall submit
to the City Archaeologist one paper copy and two (2) CD copies of the Phase IV Cultural
Resources Monitoring Report. The report shall follow the posted report scope of work on
the TLMA website and be certified by a City Registered Archaeologist. An additional copy
of the final report shall be submitted to the Eastern Information Center, the Bailey
Farmstead descendants, and to the Menifee Valley Historical Society.
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.G-20
BROADCAST SOWER. Prior to grading permit issuance, determine if it is feasible to
salvage the broadcast sower located at the base of a tree on-site. Consult with Dr. Jean
A. Keller (Cultural Resources Consultant) to devise a feasible method of salvaging the
broadcast sower. If a feasible method is not identified, the sower shall be documented
and photo or video logged prior to being removed, per the recommendations of Dr. Keller.
If salvaging the broadcast sower is determined to be feasible, the sower shall be removed
from the site and safely stored until Project development. Prior to final
inspection/occupancy, the broadcast sower shall be reconstructed for placement in or
near the Site Plaza.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
Geology and Soils
MM IV.G-2
PALEONTOLOGIST RETAINED. Prior to the issuance of grading permits, the project
applicant shall retain a qualified paleontologist approved by the Community Development
Department to create and implement a project-specific plan for monitoring site
grading/earthmoving activities (project paleontologist). The project paleontologist
retained shall review the approved development plan and shall conduct any pre-
construction work necessary to render appropriate monitoring and mitigation
requirements as appropriate. These requirements shall be documented by the project
paleontologist in a Paleontological Resource Impact Mitigation Program (PRIMP). This
PRIMP shall be submitted to the City Community Development Department for review
and approval prior to the issuance of a grading permit. Information to be contained in the
PRIMP, at a minimum and in addition to other industry standard and society of Vertebrate
Paleontology standards, are as follows:
10.10.b
Packet Pg. 253 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 18
1. The project paleontologist shall participate in a pre-construction project meeting
with development staff and construction operations to ensure an understanding of
any mitigation measures required during construction, as applicable.
2. Paleontological monitoring of earthmoving activities will be conducted on an as-
needed basis by the project paleontologist during all earthmoving activities that
may expose sensitive strata. Earthmoving activities in areas of the project area
where previously undisturbed strata will be buried but not otherwise disturbed will
not be monitored. The project paleontologist or his/her assign will have the
authority to reduce monitoring once he/she determines the probability of
encountering fossils has dropped below an acceptable level.
3. If the project paleontologist finds fossil remains, earthmoving activities will be
diverted temporarily around the fossil site until the remains have been evaluated
and recovered. Earthmoving will be allowed to proceed through the site when the
project paleontologist determines the fossils have been recovered and/or the site
mitigated to the extent necessary.
4. If fossil remains are encountered by earthmoving activities when the project
paleontologist is not on-site, these activities will be diverted around the fossil site
and the project paleontologist called to the site immediately to recover the remains.
5. If fossil remains are found, fossilliferous rock will be recovered from the fossil site
and processed to allow for the recovery of smaller fossil remains. Test samples
may be recovered from other sampling sites in the rock unit if appropriate.
6. Any recovered fossil remains will be prepared to the point of identification and
identified to the lowest taxonomic level possible by knowledgeable paleontologists.
The remains will then be curated (assigned and labeled with museum repository
fossil specimen numbers and corresponding fossil site numbers, as appropriate;
placed in specimen trays and, if necessary, vials with completed specimen data
cards) and catalogued, and associated specimen data and corresponding geologic
and geographic site data will be archived (specimen and site numbers and
corresponding data entered into appropriate museum repository catalogs and
computerized data bases) at the museum repository by a laboratory technician.
The remains will then be accessioned into the museum repository fossil collection,
where they will be permanently stored, maintained, and, along with associated
specimen and site data, made available for future study by qualified scientific
investigators. The City must be consulted on the repository/museum to receive the
fossil material prior to being curated.
7. A qualified paleontologist shall prepare a report of findings made during all site
grading activity with an appended itemized list of fossil specimens recovered
during grading (if any). This report shall be submitted to the City for review and
approval prior to final building inspection as described elsewhere in this conditions
set. All reports shall be signed by the project paleontologist and all other
10.10.b
Packet Pg. 254 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 19
professionals responsible for the report’s content (e.g., professional geologist,
professional engineer, etc.), as appropriate. Two wet-signed original copies of the
report shall be submitted directly to the office of the City Community Development
Department along with a copy of this condition and the grading plan for appropriate
case processing and tracking.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
Greenhouse Gas Emissions
MM IV.M-1
The Project Applicant shall place signage in appropriate locations on the site (i.e., parking
lots and loading areas) limiting the idling of diesel vehicles that are not in use to five
minutes.
Monitoring Phase: Construction/Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
Hazards and Hazardous Materials
MM IV.F-1
Following demolition of the existing structures and removal of the vehicles and debris
found on the project site, a visual assessment of the site shall be performed. The
assessment shall include the use of a motorgrader to scrape the upper 1 inch± of weeds
and soil away to expose areas of staining. Stained areas shall then be sampled and tested
to determine the limits of any contamination. If necessary, a Phase II Environmental Site
Assessment shall be performed. If soil and/or groundwater contamination is suspected
during Project construction activities, work in the affected area shall cease and
appropriate health and safety procedures shall be implemented. If it is determined that
such contamination exists, the City shall be notified and a remediation plan shall be
developed in compliance with applicable local, state, and federal regulations.
Monitoring Phase: Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
MM IV.F-2
When conducting work that will impact surface coatings with any lead contents, the
contractor shall comply with all relevant California Division of Occupational Safety and
10.10.b
Packet Pg. 255 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 20
Health (Cal/OSHA) regulations. When impacting lead containing materials that are found
to contain lead in levels above the US Department of Housing and Urban Development
(HUD) recommendations, the contractor shall be licensed and have properly trained
personnel for the operation. All activities shall be conducted in accordance with Federal,
State, and Local requirements.
Monitoring Phase: Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
MM IV.F-3
In accordance with the US EPA’s National Emissions Standards for Hazardous Air
Pollutants (NESHAPS) 40 CFR 61, Sub-Part M, Section 61.145, Standards for Demolition
and Renovation, all affected asbestos containing materials shall be removed prior to
demolition.
Monitoring Phase: Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
Hydrology/Water Quality
MM IV.H-1
Grading and Drainage Plans
Final grading and drainage plans shall be submitted to the City for its review and approval.
The final drainage plan shall be prepared by a licensed professional engineer. As a
condition of approval of the final grading and drainage plans, it must be demonstrated
through detailed hydraulic analysis subject to City approval that implementation of the
proposed drainage plans shall be designed based on RCFC & WCD and Riverside
County Transportation standards and design policies. Pursuant to the design standards:
• RCFC & WCD drainage facilities shall be designed for the 100-year peak flow rate
based on the most current general plan. The drainage facilities must utilize the
approved RCFC & WCD Standard Plans or RCTD Standard Plans.
• Flooding within the public street right-of-way shall meet the criteria outlined in the
RCTD Policies and Guidelines dated September 2005 or as subsequently
modified.
10.10.b
Packet Pg. 256 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 21
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
Noise
MM IV.J-1
The City shall ensure that construction activities are regulated to establish hours of
operation in order to prevent and/or mitigate the generation of excessive or adverse noise
impacts on surrounding areas. Project construction shall comply with Menifee Municipal
Code Section 8.01.010 governing hours of construction.
Monitoring Phase: Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
MM IV.J-2
A construction-related noise mitigation plan shall be submitted to the City Community
Development Department for review and approval prior to issuance of a grading permit.
The plan must depict the location of construction equipment and how the noise from this
equipment will be mitigated during construction of this project, through the use of methods
such as:
• Temporary noise attenuation fences and sound blankets that block the line of sight
from existing homes on Howard Way to on-site construction activities, capable of
reducing noise levels 10 dBA Leq or more at 50 feet of distance;
• Temporary noise attenuation fences and sound blankets that block the line of sight
from existing homes on Scott Road to on-site construction activities, capable of
reducing noise levels 10 dBA Leq or more at 50 feet of distance;
• Preferential location of equipment away from sensitive noise receptors to the
extent feasible; and
• During all Project site excavation and grading, all construction equipment, fixed or
mobile, shall be equipped with properly operating and maintained mufflers,
consistent with the manufacturers’ standards.
Monitoring Phase: Pre-Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
10.10.b
Packet Pg. 257 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 22
MM IV.J-3
The City shall require that all construction equipment utilizes noise reduction features
(e.g., mufflers and engine shrouds) that are capable of reducing noise levels 3 dBA Leq
or more at 50 feet of distance.
Monitoring Phase: Pre-Construction/Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.J-4
During construction, equipment staging areas shall be located in areas that will create the
greatest distance between construction-related noise sources and noise sensitive
receptors. All stationary construction equipment shall be placed so that noise is directed
away from the nearest sensitive receptor.
Monitoring Phase: Construction
Enforcement Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Building and Safety Department
City of Menifee Engineering/Public Works Department
MM IV.J-5
The construction contractor shall provide notices to land uses within one-quarter mile of
the Project site of the construction schedule, including a contact name and number for
noise complaints. This information shall also be posted at locations on the perimeter of
the site. Such complaints shall be resolved within 24 hours or the contractor shall provide
evidence to the City why such complaints cannot be resolved.
Monitoring Phase: Construction
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.J-6
Project Developer(s) shall enclose or shield HVAC equipment from off-site properties and
from adjacent roadways.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
10.10.b
Packet Pg. 258 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 23
MM IV.J-7
HVAC units with the lowest sound power level shall be selected.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.J-8
HVAC units shall be installed as far as possible from residential land uses.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.J-9
Project Developer(s) shall consider enclosing or shielding loading areas from off-site
properties.
Monitoring Phase: Construction/Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.J-10
Trucks shall not idle at the site for more than five minutes. Signs shall be posed limiting
idling to five minutes or less.
Monitoring Phase: Construction/Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
MM IV.J-11
Truck deliveries, trash compactors, and other loading/unloading activities, including the
outdoor use of tractors and forklifts, are to be limited to daytime hours (7:00 a.m. to 10:00
p.m.). Trucks, tractors, and forklifts operated on-site shall maintain properly operating
mufflers.
Monitoring Phase: Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
10.10.b
Packet Pg. 259 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 24
Public Services
MM IV.L-1
Development Impact Fee. The developer shall pay fees for future fire facilities in
accordance with City of Menifee Ordinance No. 17-232, the Development Impact Fee
program.
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Community Development Department
Monitoring Agency: City of Menifee Community Development Department
Transportation
MM IV.K-1
Prior to issuance of first occupancy permits, the Project applicant shall install and is
eligible to receive a future fair-share reimbursement by others for an eastbound right turn
overlap at the intersection of Haun Road and Newport Road, including finalizing the traffic
signal modification design subject to the approval of the City Engineer.
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
MM IV.K-2
Prior to issuance of first occupancy permits, the Project applicant shall install and may be
eligible to receive a future fair-share reimbursement by others for a traffic signal at the
intersection of Howard Road and Scott Road including finalizing the signal design subject
to the approval of the City Engineer.
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
MM IV.K-3
Prior to issuance of first occupancy permits, the Project applicant shall install and is
eligible to receive a future fair-share reimbursement from Project PP 22674 for a traffic
signal and construction of lanes at the intersection of Haun Road and the Southern Project
Driveway including finalizing the signal and lane design subject to the approval of the City
Engineer. Alternatively, the Project applicant may pay a fair share of the cost for the
design and construction of the traffic signal and lanes to Project PP 22674 provided that
installation is complete prior to the issuance of first occupancy permits.
10.10.b
Packet Pg. 260 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 25
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
MM IV.K-4
Prior to issuance of first occupancy permits, the Project applicant shall install and is
eligible to receive a future fair-share reimbursement by others for the addition of a second
southbound left-turn lane and a westbound right-turn overlap at the intersection of Haun
Road/Zeiders Road and Scott Road including finalizing the lane design subject to the
approval of the City Engineer. Additionally, the applicant shall be responsible for
modifying the existing traffic signal at Haun Road/Zeiders Road, or participating with
others in the fair share cost of the modification, to allow operational compatibility between
the Project’s street improvement and the traffic signal operation.
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
MM IV.K-5
Prior to issuance of first occupancy permits, the Project applicant shall install and is
eligible to receive a future fair-share reimbursement by others for a traffic signal and street
improvements at the intersection of Murrieta Road and Scott Road including finalizing the
street improvement and signal design subject to the approval of the City Engineer.
Alternatively, the Project applicant may pay a fair share of the cost for the design and
construction of the traffic signal and lanes by others provided that installation is complete
prior to the issuance of first occupancy permits. The street improvements shall add a
second southbound left-turn lane, an eastbound left-turn lane, a second westbound
through lane, and a westbound right-turn lane with overlap signal phase.
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
MM IV.K-6
Prior to issuance of first occupancy permits, the Project applicant shall install and is
eligible to receive a future fair-share reimbursement by others for a traffic signal and
southbound left-turn lane on Zeiders Road and Keller Road including finalizing the signal
design subject to the approval of the City Engineer. If the signal and southbound left-turn
lane are constructed by others, the Project Applicant shall pay a fair-share cost to others
provided the installation is complete prior to the issuance of first occupancy permits.
10.10.b
Packet Pg. 261 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 26
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
MM IV.K-7
Prior to the issuance of the first certificate of occupancy for the Project, the Project
applicant shall pay fees into the applicable Regional Transportation Funding Programs
for the following off-site improvements:
• **Murrieta Road (NS)/Scott Road (EW): Add a second southbound left-turn lane
and dedicated southbound right-turn lane. Add a second eastbound through lane.
Add a second westbound through lane and a right turn lane with overlap on Scott
Road.
• **Haun Road (NS)/Newport Road (EW): Provide second eastbound right-turn lane
with overlap. Add westbound right turn lane. Final improvements and timing for fair
share contributions at this intersection may be determined by the City during final
Project review and approval. Subject to future reimbursement by others.
• **Haun Road (NS)/Holland Road (EW): Install traffic signal. Add northbound left-
turn lane and second through lane. Add southbound left-turn lane and second
through lane. Add westbound left-turn lane and right-turn lane. Subject to future
reimbursement by others. (In the event that Holland Road Overcrossing project is
ready to proceed prior to issuance of first occupancy permits for the Project then
the improvements may be substituted with the following: installation of a traffic
signal, including Plan Specifications and Engineering and street improvements to
include adding one northbound left-turn and one through/right-turn option lane, one
southbound left-turn lane and one through/right-turn option lane and eastbound
left-turn lane.)
• **Haun Road (NS)/Garbani Road (EW): Install traffic signal. Add one additional
through lane. Add a second southbound through lane on Haun Road. Add
westbound left turn lane. Subject to future reimbursement by others. (In the event
that Holland Road Overcrossing project is ready to proceed prior to issuance of
first occupancy permits for the Project then the improvements may be substituted
with the following: installation of a traffic signal, including Plan Specifications and
Engineering and street improvements to include adding one northbound left-turn
lane and one northbound through/right-turn option lane, one southbound left-turn
lane and one southbound through/right-turn option lane, one through eastbound
left-turn lane and one eastbound through/right-turn option lane, and one
westbound left-turn lane and one westbound through/right-turn option lane.)
• Haun Road (NS)/Southern Project Driveway (EW): Install traffic signal. Construct
lanes. (Note: Project applicant shall install traffic signal and will be subject to 50%
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Packet Pg. 262 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
City of Menifee May 2020
The Junction at Menifee Valley Mitigation Monitoring/Reporting Plan
Addendum to Environmental Impact Report No. 495 Page 27
reimbursement by Project PP 22674 or will contribute its 50% cost for
improvements implemented by Project PP 22674).
• **Haun/Zeiders Road (NS)/Scott Road (EW): Add second northbound left-turn
lanes, second through lane and dual right-turn lanes with overlap. Add 2
southbound left turn lanes, a second southbound through lane, and a southbound
right-turn lane on Haun Road. Add second eastbound left-turn lane and three total
through lanes. Add a second westbound left turn lane, three total through lanes,
and a right-turn lane with overlap. (In the event that the Holland Road Overcrossing
project is ready to proceed prior to issuance of first occupancy prior to issuance of
first occupancy permits for the Project then the improvements may be substituted
with the following: modification of existing traffic signal, including additional
equipment and appurtenances, as required, for street improvements and to
provide a westbound right-turn overlap and street improvements to include adding
one eastbound left-turn lane, and one eastbound through lane, one westbound
through lane, 1 westbound left-turn lane and 1 westbound right-turn lane.)
• **Zeiders Road (NS)/Keller Road (NS): Install traffic signal and southbound left-
turn lane. (Note: Project applicant shall install traffic signal and southbound left-
turn lane and will be subject to future fair-share reimbursement by others or will
contribute its fair-share cost for traffic signal and southbound left-turn lane
installation if installed by others).
• Menifee Road (NS)/Newport Road (EW): Final improvements and timing for fair
share contributions at this intersection may be determined by the City during final
Project review and approval. Add eastbound right-turn lane with overlap.
• **Menifee Road (NS)/Garbani Road (EW): Install traffic signal. Add westbound
left-turn lane.
• **Menifee Road (NS)/Scott Road (EW): Add southbound right-turn lane with
overlap. Add third eastbound and westbound through lanes. Add westbound right-
turn lane with overlap. (Note: Constraints on geometry exist at this intersection.)
** = The Project applicant must pay a fair share through the regional transportation
funding programs to install traffic signals at these intersections.
Monitoring Phase: Pre-Occupancy
Enforcement Agency: City of Menifee Engineering/Public Works Department
Monitoring Agency: City of Menifee Engineering/Public Works Department
10.10.b
Packet Pg. 263 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
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EXHIBIT E
-1-
EXHIBIT E
Development Impact Fees
1Fee includes MDP South Benefit Area
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EXHIBIT F
-1-
EXHIBIT F
Public Benefits
1) Expanded Contribution to Howard Way Ultimate Improvements–The DEVELOPER
shall pay an in lieu fee sufficient to cover the costs of installation those improvements, in
addition to those otherwise conditions as part of the Development Plan, sufficient to build
the ultimate improvements on Howard Way sufficient to satisfied City collector street
standards along the full Project frontage (“Fee for Expanded Improvements”). The
Amount of the Fee for Expanded Improvements shall be based on an Engineers Estimate
commissioned by DEVELOPER and approved by City, utilizing unit costs that the City
utilizes for bonding purposes. The Fee for Expanded Improvements must be paid prior to
the issuance of grading permits for the roadway improvements along Howard Way that are
required of DEVELOPER as part of the Development Plan. .
2) Master Drainage Improvements – DEVELOPER shall construct or cause the
construction of the portion of the master drainage facility from the southerly right of way
of Scott Road to the northerly right of way of Scott Road which is also the southerly
property line of the project site, as depicted on Exhibit F-1, and more particularly
described on Exhibit F-2 (“Drainage Improvements”). Improvement Plans for the
Drainage Improvements shall be submitted concurrent with DEVELOPER’s submittal of
improvement plans for Haun Road improvements.
DEVELOPER shall also convey to CITY drainage / flowage easement to allow public
waters to cross the property via the public master drainage facility to the terminus north
and west of the project site, as depicted on Exhibit F-1, and more particularly described
on Exhibit F-2 (“Drainage Easement”).
The Drainage Improvements shall be completed and the Drainage Easement shall be
conveyed to the City prior to the completion of the DEVELOPER’s improvements to Scott
Road and Haun Road.
3) Haun Road Alignment Study (Study) - DEVELOPER shall cause to be prepared an
alignment study prepared by a registered Civil Engineer, which shall analyze
improvements for Haun Road from Scott Road to Scott Road north to Holland Road, a
distance of 2.0 miles (±10,600 LF) (“Alignment Study”). The Alignment Study shall be
consistent with the scoping letter of March 27, 2020 from Ronald W. Sklepko, P.E., Vice
President of DRC Engineering, Inc., attached hereto as Exhibit F-3.
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EXHIBIT F-1
-1-
EXHIBIT F-1
Summary of Main Drain Improvements in Scott Road and Haun Road
10.10.b
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EXHIBIT F-1
-2-
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EXHIBIT F-1
-3-
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Packet Pg. 268 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
916/031858-0003 15091031.1 a05/21/20 EXHIBIT F-2 -1- EXHIBIT F-2 Preliminary Drainage Plan Detail 10.10.bPacket Pg. 269Attachment: Development Agreement [Revision 1] (2556 : The Junction)
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EXHIBIT F-3
-1-
EXHIBIT F-3
Scoping Letter for Haun Road Alignment Study
10.10.b
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916/031858-0003
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EXHIBIT F-3
-2-
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EXHIBIT F-3
-3-
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EXHIBIT G
-1-
EXHIBIT G
Assumption Agreement
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EXHIBIT G
-2-
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EXHIBIT G
-3-
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EXHIBIT G
-4-
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EXHIBIT G
-5-
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EXHIBIT G
-6-
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EXHIBIT G
-7-
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EXHIBIT G
-8-
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EXHIBIT G
-9-
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EXHIBIT G
-10-
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EXHIBIT G
-11-
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EXHIBIT G
-12-
10.10.b
Packet Pg. 285 Attachment: Development Agreement [Revision 1] (2556 : The Junction)
From:Mauricio Alvarez
To:Ryan Fowler
Subject:The Junction Plot Plan 2017-287
Date:Monday, July 6, 2020 10:52:35 AM
CAUTION: This email originated from outside of the organization. Do not click on anylinks or open attachments unless your recognize the sender and know the content is safe.
Good Morning Ryan,
RTA has reviewed the plans you have sent and have one comment:
1. ADA compliant, connected sidewalk on both Haun Rd & Scott Rd.
Thank you for considering this comment.
Mauricio Alvarez, MBA
Planning AnalystRiverside Transit Agencyp: 951.565.5260 | e: malvarez@riversidetransit.comWebsite | Facebook | Twitter | Instagram1825 Third Street, Riverside, CA 92507
10.10.c
Packet Pg. 286 Attachment: RTA Comment Letter (2556 : The Junction)
CITY OF MENIFEE
SUBJECT: Reimbursement Agreement for the Transportation Uniform
Mitigation Fee Program Funds for the McCall/I-215
Interchange
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Carlos Geronimo, Senior Civil Engineer
REVIEWED BY: Jonathan Smith, Public Works Director/City Engineer
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Execute agreement between City of Menifee and the Western Riverside Council of
Governments (WRCOG) to reimburse Transportation Uniform Mitigation Fee Program (TUMF)
funds for Environmental and Design of the McCall / I-215 Interchange Project.
DISCUSSION
The I-215/McCall Boulevard Interchange is located on I-215 between Ethanac Road and
Newport Road. It is a major access point for existing and proposed residential and commercial
sites. This area is projected to experience substantial growth from planned development
projects. Build out of the area will generate substantial traffic growth on the freeway and McCall
Boulevard at the interchange. Widening of McCall Boulevard at the interchange will address
existing deficiencies and accommodate projected growth.
The City of Menifee has identified the need to advance the McCall Boulevard/I-215 Interchange
Project through the Environmental and Design phases. A Project Initiation Document was
completed in 2016 that included a Project Study Report and Project Development Study (PSR-
PDS). The PSR-PDS identifies the environmental documents needed, potential interchange
geometry alternatives, and right-of-way impacts of the project; this document is the basis for the
next phases of the project.
The McCall Boulevard/I-215 Interchange is a Transpiration Uniform Mitigation Fee (TUMF)
facility with a maximum share contribution of $16,930,000. In FY 2019-20 additional funds
became available in the TUMF program for projects within the Central Zone. The City of
Menifee requested $2,852,230 of TUMF funds for the Environmental and Design phases of the
project; this amount was the estimated cost in the PSR-PDS for these phases. Western
Riverside Council of Governments (WRCOG) approved the City’s request.
10.11
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City of Menifee Staff Report
McCall/I-215 Interchange TUMF Agreement
July 15, 2020
Page 2 of 2
FISCAL IMPACT
Since this is a reimbursement agreement, there is no Fiscal Impact by executing this TUMF
Reimbursement Agreement until the City enters into a contract with a consulting firm.
Once the project is awarded to a selected engineering consulting firm through the RFP process,
City Staff will bring this project before City Council for award identifying the accounts and
appropriations to cover the cost of the project.
ATTACHMENTS
1. McCall I-215 Interchange Agreement - TUMF
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TRANSPORTATION UNIFORM MITIGATION FEE PROGRAM
AGREEMENT TO REIMBURSE TUMF FUNDS
McCALL/I-215 INTERCHANGE
THIS REIMBURSEMENT AGREEMENT (“Agreement”) is entered into as of this day
of ____, 2020, by and between the Western Riverside Council of Governments (“WRCOG”), a
California joint powers authority and The City of Menifee, a California municipal corporation
(“AGENCY”). WRCOG and AGENCY are sometimes hereinafter referred to individually as
“Party” and collectively as “Parties”.
RECITALS
A. WRCOG is the Administrator of the Transportation Uniform Mitigation Fee
Program of Western Riverside County (“TUMF Program”).
B. WRCOG has identified and designated certain transportation improvement
projects throughout Western Riverside County as projects of regional importance (“Qualifying
Projects” or “Projects”). The Qualifying Projects are more specifically described in that certain
WRCOG study titled “TUMF Nexus Study”, as may be amended from time to time. Qualifying
Projects can have Regional or Zonal significance as further described in the TUMF Nexus Study.
C. The TUMF Program is funded by TUMF fees paid by new development in
Western Riverside County (collectively, “TUMF Program Funds”). TUMF Program Funds are
held in trust by WRCOG for the purpose of funding the Qualifying Projects.
D. The AGENCY proposes to implement a Qualifying Project, and it is the purpose
of this Agreement to identify the project and to set forth the terms and conditions by which
WRCOG will release TUMF Program Funds.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and subject to the
conditions contained herein, the Parties hereby agree as follows:
1. Description of the Qualifying Project. This Agreement is intended to distribute
TUMF Program Funds to the AGENCY for McCall/I-215 Interchange, (the “Project”), a
Qualifying Project. The Work, including a timetable and a detailed scope of work, is more fully
described in Exhibit “A” attached hereto and incorporated herein by reference and, pursuant to
Section 20 below, is subject to modification if requested by the AGENCY and approved by
WRCOG. The work shall be consistent with one or more of the defined WRCOG Call for
Projects phases detailed herein as follows:
1) PA&ED – Project Approvals & Environmental Document
2) PS&E – Plans, Specifications and Estimates
3) R/W – Right of Way Acquisition and Utility Relocation
4) CON – Construction
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2. WRCOG Funding Amount. WRCOG hereby agrees to distribute to AGENCY,
on the terms and conditions set forth herein, a sum not to exceed Two Million Eight Hundred
Fifty Two Thousand Two Hundred Thirty Dollars ($2,852,230), to be used for reimbursing
the AGENCY for eligible Project expenses as described in Section 3 herein (“Funding
Amount”). The Parties acknowledge and agree that the Funding Amount may be less than the
actual cost of the Project. Nevertheless, the Parties acknowledge and agree that WRCOG shall
not be obligated to contribute TUMF Program Funds in excess of the maximum TUMF share
identified in the TUMF Nexus Study (“Maximum TUMF Share”), as may be amended from time
to time.
3. Project Costs Eligible for Advance/Reimbursement. The total Project costs
(“Total Project Cost”) may include the following items, provided that such items are included in
the scope of work attached hereto as Exhibit “A” (“Scope of Work”): (1) AGENCY and/or
consultant costs associated with direct Project coordination and support; (2) funds expended in
preparation of preliminary engineering studies; (3) funds expended for preparation of
environmental review documentation for the Project; (4) all costs associated with right-of-way
acquisition, including right-of-way engineering, appraisal, acquisition, legal costs for
condemnation procedures if authorized by the AGENCY, and costs of reviewing appraisals and
offers for property acquisition; (5) costs reasonably incurred if condemnation proceeds; (6) costs
incurred in the preparation of plans, specifications, and estimates by AGENCY or consultants;
(7) AGENCY costs associated with bidding, advertising and awarding of the Project contracts;
(8) construction costs, including change orders to construction contract approved by the
AGENCY; (9) construction management, field inspection and material testing costs; and (10)
any AGENCY administrative cost to deliver the Project.
4. Ineligible Project Costs. The Total Project Cost shall not include the following
items which shall be borne solely by the AGENCY without reimbursement: (1) any AGENCY
administrative fees attributed to the reviewing and processing of the Project; and (2) expenses for
items of work not included within the Scope of Work in Exhibit “A”.
5. Procedures for Distribution of TUMF Program Funds to AGENCY.
(a) Initial Payment by the AGENCY. The AGENCY shall be responsible for
initial payment of all the Project costs as they are incurred. Following payment of such Project
costs, the AGENCY shall submit invoices to WRCOG requesting reimbursement of eligible
Project costs. Each invoice shall be accompanied by detailed contractor invoices, or other
demands for payment addressed to the AGENCY, and documents evidencing the AGENCY’s
payment of the invoices or demands for payment. Documents evidencing the AGENCY’S
payment of the invoices shall be retained for four (4) years and shall be made available for
review by WRCOG. The AGENCY shall submit invoices not more often than monthly and not
less often than quarterly.
(b) Review and Reimbursement by WRCOG. Upon receipt of an invoice
from the AGENCY, WRCOG may request additional documentation or explanation of the
Project costs for which reimbursement is sought. Undisputed amounts shall be paid by WRCOG
to the AGENCY within thirty (30) days. In the event that WRCOG disputes the eligibility of the
AGENCY for reimbursement of all or a portion of an invoiced amount, the Parties shall meet
10.11.a
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and confer in an attempt to resolve the dispute. If the meet and confer process is unsuccessful in
resolving the dispute, the AGENCY may appeal WRCOG’s decision as to the eligibility of one
or more invoices to WRCOG’s Executive Director. The WRCOG Executive Director shall
provide his/her decision in writing. If the AGENCY disagrees with the Executive Director’s
decision, the AGENCY may appeal the decision of the Executive Director to the full WRCOG
Executive Committee, provided the AGENCY submits its request for appeal to WRCOG within
ten (10) days of the Executive Director’s written decision. The decision of the WRCOG
Executive Committee shall be final. Additional details concerning the procedure for the
AGENCY’s submittal of invoices to WRCOG and WRCOG’s consideration and payment of
submitted invoices are set forth in Exhibit “B”, attached hereto and incorporated herein by
reference.
(c) Funding Amount/Adjustment. If a post Project audit or review indicates
that WRCOG has provided reimbursement to the AGENCY in an amount in excess of the
Maximum TUMF Share of the Project, or has provided reimbursement of ineligible Project
costs, the AGENCY shall reimburse WRCOG for the excess or ineligible payments within 30
days of notification by WRCOG.
6. Increases in Project Funding. The Funding Amount may, in WRCOG’s sole
discretion, be augmented with additional TUMF Program Funds if the TUMF Nexus Study is
amended to increase the maximum eligible TUMF share for the Project. Any such increase in
the Funding Amount must be approved in writing by WRCOG’s Executive Director. In no case
shall the amount of TUMF Program Funds allocated to the AGENCY exceed the then-current
maximum eligible TUMF share for the Project. No such increased funding shall be expended to
pay for any Project already completed. For purposes of this Agreement, the Project or any
portion thereof shall be deemed complete upon its acceptance by WRCOG’s Executive Director
which shall be communicated to the AGENCY in writing.
7. No Funding for Temporary Improvements. Only segments or components of the
construction that are intended to form part of or be integrated into the Project may be funded by
TUMF Program Funds. No improvement which is temporary in nature, including but not limited
to temporary roads, curbs, tapers or drainage facilities, shall be funded with TUMF Program
Funds, except as needed for staged construction of the Project.
8. AGENCY’s Funding Obligation to Complete the Project. In the event that the
TUMF Program Funds allocated to the Project represent less than the total cost of the Project, the
AGENCY shall provide such additional funds as may be required to complete the Project.
9. AGENCY’s Obligation to Repay TUMF Program Funds to WRCOG; Exception
For PA&ED Phase Work. Except as otherwise expressly excepted within this paragraph, in the
event that: (i) the AGENCY, for any reason, determines not to proceed with or complete the
Project; or (ii) the Project is not timely completed, subject to any extension of time granted by
WRCOG pursuant to the terms of this Agreement; the AGENCY agrees that any TUMF Program
Funds that were distributed to the AGENCY for the Project shall be repaid in full to WRCOG,
and the Parties shall enter into good faith negotiations to establish a reasonable repayment
schedule and repayment mechanism. If the Project involves work pursuant to a PA&ED phase,
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AGENCY shall not be obligated to repay TUMF Program Funds to WRCOG relating solely to
PA&ED phase work performed for the Project.
10. AGENCY’s Local Match Contribution. “AGENCY local match funding is not
required, as shown in Exhibit “A” and as called out in the AGENCY’s Project Nomination Form
submitted to WRCOG in response to its Call for Projects.”]
11. Term/Notice of Completion. The term of this Agreement shall be from the date
first herein above written until the earlier of the following: (i) the date WRCOG formally
accepts the Project as complete, pursuant to Section 6; (ii) termination of this Agreement
pursuant to Section 15; or (iii) the AGENCY has fully satisfied its obligations under this
Agreement. All applicable indemnification provisions of this Agreement shall remain in effect
following the termination of this Agreement.
12. Representatives of the Parties. WRCOG’s Executive Director, or his or her
designee, shall serve as WRCOG’s representative and shall have the authority to act on behalf of
WRCOG for all purposes under this Agreement. The AGENCY hereby designates Jonathan
Smith, Director of Public Works, or his or her designee, as the AGENCY’s representative to
WRCOG. The AGENCY’s representative shall have the authority to act on behalf of the
AGENCY for all purposes under this Agreement and shall coordinate all activities of the Project
under the AGENCY’s responsibility. The AGENCY shall work closely and cooperate fully with
WRCOG’s representative and any other agencies which may have jurisdiction over or an interest
in the Project.
13. Expenditure of Funds by AGENCY Prior to Execution of Agreement. Nothing in
this Agreement shall be construed to prevent or preclude the AGENCY from expending funds on
the Project prior to the execution of the Agreement, or from being reimbursed by WRCOG for
such expenditures. However, the AGENCY understands and acknowledges that any expenditure
of funds on the Project prior to the execution of the Agreement is made at the AGENCY’s sole
risk, and that some expenditures by the AGENCY may not be eligible for reimbursement under
this Agreement.
14. Review of Services. The AGENCY shall allow WRCOG’s Representative to
inspect or review the progress of the Project at any reasonable time in order to determine whether
the terms of this Agreement are being met.
15. Termination.
(a) Notice. Either WRCOG or AGENCY may, by written notice to the other
party, terminate this Agreement, in whole or in part, in response to a material breach hereof by
the other Party, by giving written notice to the other party of such termination and specifying the
effective date thereof. The written notice shall provide a 30-day period to cure any alleged
breach. During the 30-day cure period, the Parties shall discuss, in good faith, the manner in
which the breach can be cured.
(b) Effect of Termination. In the event that the AGENCY terminates this
Agreement, the AGENCY shall, within 180 days, repay to WRCOG any unexpended TUMF
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Program Funds provided to the AGENCY under this Agreement and shall complete any portion
or segment of work for the Project for which TUMF Program Funds have been provided. In the
event that WRCOG terminates this Agreement, WRCOG shall, within 90 days, distribute to the
AGENCY TUMF Program Funds in an amount equal to the aggregate total of all unpaid
invoices which have been received from the AGENCY regarding the Project at the time of the
notice of termination; provided, however, that WRCOG shall be entitled to exercise its rights
under Section 5(b), including but not limited to conducting a review of the invoices and
requesting additional information. Upon such termination, the AGENCY shall, within 180 days,
complete any portion or segment of work for the Project for which TUMF Program Funds have
been provided. This Agreement shall terminate upon receipt by the non-terminating Party of the
amounts due to it hereunder and upon completion of the segment or portion of Project work for
which TUMF Program Funds have been provided.
(c) Cumulative Remedies. The rights and remedies of the Parties provided in
this Section are in addition to any other rights and remedies provided by law or under this
Agreement.
16. Prevailing Wages. The AGENCY and any other person or entity hired to perform
services on the Project are alerted to the requirements of California Labor Code Sections 1770 et
seq., which would require the payment of prevailing wages were the services or any portion
thereof determined to be a public work, as defined therein. The AGENCY shall ensure
compliance with these prevailing wage requirements by any person or entity hired to perform the
Project. The AGENCY shall defend, indemnify, and hold harmless WRCOG, its officers,
employees, consultants, and agents from any claim or liability, including without limitation
attorneys, fees, arising from its failure or alleged failure to comply with California Labor Code
Sections 1770 et seq.
17. Progress Reports. WRCOG may request the AGENCY to provide WRCOG with
progress reports concerning the status of the Project.
18. Indemnification.
(a) AGENCY Responsibilities. In addition to the indemnification required
under Section 16, the AGENCY agrees to indemnify and hold harmless WRCOG, its officers,
agents, consultants, and employees from any and all claims, demands, costs or liability arising
from or connected with all activities governed by this Agreement including all design and
construction activities, due to negligent acts, errors or omissions or willful misconduct of the
AGENCY or its subcontractors. The AGENCY will reimburse WRCOG for any expenditures,
including reasonable attorneys’ fees, incurred by WRCOG, in defending against claims
ultimately determined to be due to negligent acts, errors or omissions or willful misconduct of
the AGENCY.
(b) WRCOG Responsibilities. WRCOG agrees to indemnify and hold
harmless the AGENCY, its officers, agents, consultants, and employees from any and all claims,
demands, costs or liability arising from or connected with all activities governed by this
Agreement including all design and construction activities, due to negligent acts, errors or
omissions or willful misconduct of WRCOG or its sub-consultants. WRCOG will reimburse the
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AGENCY for any expenditures, including reasonable attorneys’ fees, incurred by the AGENCY,
in defending against claims ultimately determined to be due to negligent acts, errors or omissions
or willful misconduct of WRCOG.
(c) Effect of Acceptance. The AGENCY shall be responsible for the
professional quality, technical accuracy and the coordination of any services provided to
complete the Project. WRCOG’s review, acceptance or funding of any services performed by
the AGENCY or any other person or entity under this Agreement shall not be construed to
operate as a waiver of any rights WRCOG may hold under this Agreement or of any cause of
action arising out of this Agreement. Further, the AGENCY shall be and remain liable to
WRCOG, in accordance with applicable law, for all damages to WRCOG caused by the
AGENCY’s negligent performance of this Agreement or supervision of any services provided to
complete the Project.
19. Insurance. The AGENCY shall require, at a minimum, all persons or entities
hired to perform the Project to obtain, and require their subcontractors to obtain, insurance of the
types and in the amounts described below and satisfactory to the AGENCY and WRCOG. Such
insurance shall be maintained throughout the term of this Agreement, or until completion of the
Project, whichever occurs last.
(a) Commercial General Liability Insurance. Occurrence version commercial
general liability insurance or equivalent form with a combined single limit of not less than
$1,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it shall apply
separately to the Project or be no less than two times the occurrence limit. Such insurance shall:
(i) Name WRCOG and AGENCY, and their respective officials,
officers, employees, agents, and consultants as insured with respect to performance of the
services on the Project and shall contain no special limitations on the scope of coverage or the
protection afforded to these insured;
(ii) Be primary with respect to any insurance or self-insurance
programs covering WRCOG and AGENCY, and/or their respective officials, officers,
employees, agents, and consultants; and
(iii) Contain standard separation of insured provisions.
(b) Business Automobile Liability Insurance. Business automobile liability
insurance or equivalent form with a combined single limit of not less than $1,000,000.00 per
occurrence. Such insurance shall include coverage for owned, hired and non-owned
automobiles.
(c) Professional Liability Insurance. Errors and omissions liability insurance
with a limit of not less than $1,000,000.00 Professional liability insurance shall only be required
of design or engineering professionals.
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(d) Workers’ Compensation Insurance. Workers’ compensation insurance
with statutory limits and employers’ liability insurance with limits of not less than $1,000,000.00
each accident.
20. Project Amendments. Changes to the characteristics of the Project, including the
deadline for Project completion, and any responsibilities of the AGENCY or WRCOG may be
requested in writing by the AGENCY and are subject to the approval of WRCOG’s
Representative, which approval will not be unreasonably withheld, provided that extensions of
time for completion of the Project shall be approved in the sole discretion of WRCOG’s
Representative. Nothing in this Agreement shall be construed to require or allow completion of
the Project without full compliance with the California Environmental Quality Act (Public
Resources Code Section 21000 et seq.; “CEQA”) and the National Environmental Policy Act of
1969 (42 USC 4231 et seq.), if applicable, but the necessity of compliance with CEQA and/or
NEPA shall not justify, excuse, or permit a delay in completion of the Project.
21. Conflict of Interest. For the term of this Agreement, no member, officer or
employee of the AGENCY or WRCOG, during the term of his or her service with the AGENCY
or WRCOG, as the case may be, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
22. Limited Scope of Duties. WRCOG’s and the AGENCY’s duties and obligations
under this Agreement are limited to those described herein. WRCOG has no obligation with
respect to the safety of any Project performed at a job site. In addition, WRCOG shall not be
liable for any action of AGENCY or its contractors relating to the condemnation of property
undertaken by AGENCY or construction related to the Project.
23. Books and Records. Each party shall maintain complete, accurate, and clearly
identifiable records with respect to costs incurred for the Project under this Agreement. They
shall make available for examination by the other party, its authorized agents, officers or
employees any and all ledgers and books of account, invoices, vouchers, canceled checks, and
other records or documents evidencing or related to the expenditures and disbursements charged
to the other party pursuant to this Agreement. Further, each party shall furnish to the other party,
its agents or employees such other evidence or information as they may require with respect to
any such expense or disbursement charged by them. All such information shall be retained by
the Parties for at least four (4) years following termination of this Agreement, and they shall
have access to such information during the four-year period for the purposes of examination or
audit.
24. Equal Opportunity Employment. The Parties represent that they are equal
opportunity employers and they shall not discriminate against any employee or applicant of
reemployment because of race, religion, color, national origin, ancestry, sex or age. Such non-
discrimination shall include, but not be limited to, all activities related to initial employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
25. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California.
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26. Attorneys’ Fees. If either party commences an action against the other party
arising out of or in connection with this Agreement, the prevailing party in such litigation shall
be entitled to have and recover from the losing party reasonable attorneys’ fees and costs of suit.
27. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
28. Headings. Article and Section Headings, paragraph captions or marginal
headings contained in this Agreement are for convenience only and shall have no effect in the
construction or interpretation of any provision herein.
29. Public Acknowledgement. The AGENCY agrees that all public notices, news
releases, information signs and other forms of communication shall indicate that the Project is
being cooperatively funded by the AGENCY and WRCOG TUMF Program Funds.
30. No Joint Venture. This Agreement is for funding purposes only and nothing
herein shall be construed to make WRCOG a party to the construction of the Project or to make
it a partner or joint venture with the AGENCY for such purpose.
31. Compliance With the Law. The AGENCY shall comply with all applicable laws,
rules and regulations governing the implementation of the Qualifying Project, including, where
applicable, the rules and regulations pertaining to the participation of businesses owned or
controlled by minorities and women promulgated by the Federal Highway Administration and
the Federal Department of Transportation.
32. Notices. All notices hereunder and communications regarding interpretation of
the terms of this Agreement or changes thereto shall be provided by the mailing thereof by
registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
If to AGENCY: The City of Menifee
29844 Huan Road
Menifee, CA 92586
Attention: Jonathan Smith, Director of Public Works
Telephone: 951-723-3704
Mobile: 951-723-7594
If to WRCOG: Western Riverside Council of Governments
Riverside County Administrative Center
3390 University Ave, Suite 200
Riverside, California 92501
Attention: Christopher Gray, Director of Transportation
Telephone: (951) 955-8304
Facsimile: (951) 787-7991
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Any notice so given shall be considered served on the other party three (3) days after
deposit in the U.S. mail, first class postage prepaid, return receipt requested, and addressed to the
party at its applicable address. Actual notice shall be deemed adequate notice on the date actual
notice occurred regardless of the method of service.
33. Integration; Amendment. This Agreement contains the entire agreement between
the PARTIES. Any agreement or representation respecting matters addressed herein that are not
expressly set forth in this Agreement is null and void. This Agreement may be amended only by
mutual written agreement of the PARTIES.
34. Severability. If any term, provision, condition or covenant of this Agreement is
held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby.
35. Conflicting Provisions. In the event that provisions of any attached appendices or
exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms
and conditions contained in this Agreement shall control the actions and obligations of the
Parties and the interpretation of the Parties’ understanding concerning the Agreement.
36. Independent Contractors. Any person or entities retained by the AGENCY or any
contractor shall be retained on an independent contractor basis and shall not be employees of
WRCOG. Any personnel performing services on the Project shall at all times be under the
exclusive direction and control of the AGENCY or contractor, whichever is applicable. The
AGENCY or contractor shall pay all wages, salaries and other amounts due such personnel in
connection with their performance of services on the Project and as required by law. The
AGENCY or consultant shall be responsible for all reports and obligations respecting such
personnel, including, but not limited to: social security taxes, income tax withholding,
unemployment insurance and workers’ compensation insurance.
37. Effective Date. This Agreement shall not be effective until executed by both
Parties. The failure of one party to execute this Agreement within forty-five (45) days of the
other party executing this Agreement shall render any execution of this Agreement ineffective.
38. No Third Party Beneficiaries. There are no intended third party beneficiaries of
any right or obligation assumed by the Parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized representatives to be effective on the day and year first above-written.
WESTERN RIVERSIDE COUNCIL THE CITY OF MENIFEE
OF GOVERNMENTS
By: Date: By: Date:
Rick Bishop Bill Zimmerman
Executive Director Mayor
Approved to Form:
By: Date:
Steven C. DeBaun
General Counsel
6/12/20
6/12/20
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Exhibit A
Page 11 of 14
EXHIBIT “A”
SCOPE OF WORK
SCOPE OF WORK: PA&ED as well as PS&E Phases of the project including completion of
the environmental document and project approval through Caltrans, completion of the plans,
specifications and estimate with Caltrans oversight as in accordance with approved Project Study
Report for this project.
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Exhibit A – 1
Page 12 of 14
EXHIBIT “A-1”
ESTIMATE OF COST
Phase TUMF LOCAL TOTAL
PA&ED $1,100,000 $1,100,000
PS&E $1,752,230 $1,752,230
RIGHT OF WAY
CONSTRUCTION
TOTAL $2,852,230 $2,852,230
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Exhibit A – 2
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EXHIBIT “A-2”
PROJECT SCHEDULE
TIMETABLE:
Phase
Estimated
Completion Date Estimated Cost Comments
PA&ED 6/30/2022 $1,100,000
PS&E 6/30/2024 $1,752,230
RIGHT OF WAY
CONSTRUCTION
TOTAL $2,852,230
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Exhibit B-5
Page 14 of 14
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CITY OF MENIFEE
SUBJECT: Permanent Local Housing Allocation Program Funding
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Edna Lebron, Senior Management Analyst
REVIEWED BY: Cheryl Kitzerow, Community Development Director
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Adopt a Resolution authorizing staff to submit an application for Permanent Local Housing
Allocation (PLHA) funds to be used as described in the staff report/plan for down payment
assistance.
DISCUSSION
In 2017, Governor Brown signed a 15-bill housing package aimed at addressing the State’s
housing shortage and high housing costs. Specifically, it included the Building Homes and Jobs
Act of 2017 (SB 2), which established a $75 recording fee on documents for certain real estate
transactions, designed to generate ongoing revenues to increase the supply of affordable
homes in California. Because the number of real estate transactions recorded in each county
will vary from year to year, the revenues collected will fluctuate.
In February 2020, the California Department of Housing and Community Development (HCD)
announced the release of entitlement and non-entitlement components of local government
formula and released a Notice of Funding Availability (NOFA) to award approximately $195
million for the Permanent Local Housing Allocation (PLHA) Program. This funding provides
grants to entitlement and non-entitlement local governments in California for eligible housing-
related projects and programs that assist in addressing the unmet housing needs of their local
communities.
The State estimates that the City of Menifee will receive $251,604 by formula allocation for FY
2019-20, and an estimated $1.2 million total over five years. (Note that this five-year figure is
only an estimate made pre-COVID, and the actual amount of funds to be awarded will likely vary
from that estimate.) The City must submit an application, including a Council-approved five-year
expenditure plan, by July 27, 2020, to receive that funding in late 2020.
The five-year expenditure plan must detail how the allocated funds will be used for eligible
activities. It also must include a description of the way the City will prioritize investments that
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City of Menifee Staff Report
Permanent Local Housing Allocation Program
July 15, 2020
Page 2 of 2
increase the supply of housing for households with incomes at or below 60% of area median
income (AMI). HCD has clarified that programs targeted for homeless and at-risk populations, at
or below 30% AMI by definition, do meet this requirement. In addition, the expenditure plan
must also include a description of how it is consistent with the programs set forth in the City’s
Housing Element, and evidence that it was authorized and adopted by resolution of the City
Council.
PROGRAM
The City proposes to allocate 100% of the PLHA funds for direct homeownership assistance to
eligible households by providing down payment assistance on a first-come, first-served basis to
persons not exceeding 80 percent of the HUD-adjusted area median income. The program will
provide down payment assistance as a silent-second loan in the amount of up to $15,000. If the
PLHA recipient is no longer the principal property owner or the property is sold prior to the end
of the fifteenth (15) year affordability period, all PLHA direct subsidy funds must be repaid.
Otherwise, the loan is converted to a grant after the affordability period.
In addition, staff time associated with using the funds can be charged as project delivery costs,
while up to five percent of the award can be used for general administrative costs related to
tracking and annual reporting on the execution of eligible activities.
Once the City Council approves the expenditure plan and submission of the application to HCD,
HCD is expected to approve the application and send the City a five-year Standard Agreement
to be executed and signed within 90 days. All the first-year’s allocation will be available for
disbursement once the Standard Agreement is executed. Each year, HCD will publish the
amount of funds the City will receive for the following year. To receive the funds, the City must
submit a letter accepting the funds, its annual report detailing uses and expenditures of all
awarded PLHA allocations and outcomes achieved, must have a certified Housing Element, and
have submitted its latest Housing Element annual performance report.
During the five-year expenditure plan period, up to 10% of the planned expenditure for each
type of eligible activity may be reallocated to another activity without the submission of a plan
amendment; however, changes exceeding this amount require HCD’s approval in writing.
FISCAL IMPACT
There is no fiscal impact to the General Fund. The City’s PLHA Program will be fully grant
funded and allocated through the California Department of Housing and Community
Development. It is estimated that the City may receive $251,604 per year for the next five years,
totaling approximately $1.2 million.
Upon formal confirmation that the City will be awarded the requested PLHA funds, staff will
return to Council with a corresponding Budget Adjustment Resolution, formally accepting and
amending the budget to recognize the grant funds.
ATTACHMENTS
1. Resolution PLHA
2. PLHA Formula Allocation Application
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RESOLUTION NO. 20- _________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE APPROVING
THE SUBMITTAL TO APPLY FOR AND ACCEPT PERMANENT LOCAL HOUSING
ALLOCATION PROGRAM FUNDS FROM THE CALIFORNIA DEPARTMENT OF HOUSING
AND COMMUNITY DEVELOPMENT (HCD)
WHEREAS, HCD is authorized to provide up to $195 million under the
SB 2 Permanent Local Housing Allocation Program Formula Component from the
Building Homes and Jobs Trust Fund for assistance to Cities and Counties (as
described in Health and Safety Code section 50470 et seq. (Chapter 364, Statutes of
2017 (SB 2)); and
WHEREAS, the State of California (the “State”), Department of Housing and
Community Development (“Department”) issued a Notice of Funding Availability
(“NOFA”) dated 02/26/2020 under the Permanent Local Housing Allocation (PLHA)
Program; and
WHEREAS, the City of Menifee is an eligible Local government applying for the
program to administer one or more eligible activities; and
WHEREAS HCD may approve funding allocations for PLHA Program, subject to the
terms and conditions of the Guidelines, NOFA, Program requirements, the Standard
Agreement and other contracts between HCD and PLHA grant recipients;
NOW THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY
OF MENIFEE AS FOLLOWS:
Section 1. If the City of Menifee receives a grant of PLHA funds from HCD
pursuant to the above referenced PLHA NOFA, it represents and certifies that it will
use all such funds in a manner consistent and in compliance with all applicable
state and federal statutes, rules, regulations, and laws, including without limitation
all rules and laws regarding the PLHA Program, as well as any and all contracts
City of Menifee may have with HCD.
Section 2. City of Menifee is hereby authorized and directed to receive a
PLHA grant, in an amount not to exceed the five-year estimate of the PLHA formula
allocations, as stated in Appendix C of the current NOFA $1.2M in accordance with
all applicable rules and laws.
Section 3. City of Menifee hereby agrees to use the PLHA funds for eligible
activities as approved by the HCD and in accordance with all Program
requirements, Guidelines, other rules and laws, as well as in a manner consistent
and in compliance with the Standard Agreement and other contracts between the
City of Menifee and the HCD.
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Packet Pg. 305 Attachment: Resolution PLHA [Revision 3] (2575 : Permanent Local Housing Allocation Program)
Section 4. Pursuant to City of Menifee’s certification in this resolution, the
PLHA funds will be expended only for eligible Activities and consistent with all
program requirements.
Section 5. City of Menifee shall be subject to the terms and conditions as
specified in the Standard Agreement, the PLHA Program Guidelines and any other
applicable SB 2 Guidelines published by the HCD.
Section 6. The City Manager, or designee is authorized to execute the PLHA
Program Application, the PLHA Standard Agreement and any subsequent
amendments or modifications thereto, as well as any other documents which are
related to the Program or the PLHA grant awarded to City of Menifee, as HCD may
deem appropriate.
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Packet Pg. 306 Attachment: Resolution PLHA [Revision 3] (2575 : Permanent Local Housing Allocation Program)
PASSED, APPROVED, AND ADOPTED this 15th day of July 2020.
____________________________
Bill Zimmerman, Mayor
ATTEST APPROVED AS TO FORM:
________________________ __________________________
Sarah Manwaring, City Clerk Jeffrey Melching, City Attorney
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Packet Pg. 307 Attachment: Resolution PLHA [Revision 3] (2575 : Permanent Local Housing Allocation Program)
Final Filing Date: April 27, 2020 through July 27, 2020 at 5 P.M. PST
Permanent Local Housing Allocation
(PLHA) Formula Allocation
2020 Application
State of California
Governor, Gavin Newsom
Lourdes Castro Ramírez, Secretary
Business, Consumer Services and Housing Agency
Douglas R. McCauley, Acting Director
Department of Housing and Community Development
Program Design and Implementation, PLHA Program
2020 West El Camino Avenue, Suite 150, Sacramento, CA 95833
PLHA Program Email: PLHA@hcd.ca.gov
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§302(c)(4)(D) Evidence that the Plan was authorized and adopted by resolution by the Local
jurisdiction and that the public had an adequate opportunity to review and comment on its
content.
Plan Adoption 5
Legally binding agreement between Delegating and Administering Local Governments 4 X Applicant Agreement
Disclosure of Application (California Public Records Act Statutes of 1968 Chapter 1473): Information provided in the application will become a public record available for review
by the public, pursuant to the California Public Records Act Statutes of 1968 Chapter 1473. As such, any materials provided will be disclosable to any person making a request under
this Act. The Department cautions Applicants to use discretion in providing information not specifically requested, including but not limited to, bank accounts, personal phone
numbers and home addresses. By providing this information to the Department, the Applicant is waiving any claim of confidentiality and consents to the disclosure of submitted
material upon request."
Binder
Tab #
Threshold
Requirement Electronic File Name Document Description Included?
1 X
2
3 X App1 TIN Taxpayer Identification Number Document
Sponsor must complete the following worksheets in the PLHA Formula Allocation Application.
Formula Allocation Application
X App1 Signature Block Signature Block - upload in Microsoft Word Document
302(c)(4) Plan
Legislative Contacts
Checklist
App1 Resolution PLHA webpage for Resolution Document
"Red" shaded cells indicate the Sponsor has failed to meet a requirement of the program. Point cells in the Scoring worksheet shaded in "red" indicate that the Sponsor has failed to
meet the minimum points required.
Instructions Rev. 5/20/20
When opening this file, a yellow banner at the top may appear with a button that says "Enable Content". It is essential that you click this box so that the macros are
enabled. Enabling macros is necessary for full worksheet functionality. Macros do not work with Microsoft's Excel version for Apple Mac.
HCD will only accept applications through a postal carrier service such as U.S. Postal Service, UPS, FedEx or other carrier services that provide date stamp verification confirming
delivery to HCD’s office. A complete original application and an electronic copy on a USB flash drive with all applicable information must be received by HCD via postal carrier no
later than 5:00 p.m. on:
Monday, July 27, 2020
Applications must be on the Department’s forms and cannot be altered or modified by the Applicant. Excel forms must be in Excel format and unprotected, not a .pdf document. For
application errors please fill out the Application Support worksheet and email the entire workbook to Application Support for application errors at AppSupport@hcd.ca.gov.
General Instructions (Additional instructions and guidance are given throughout the Supplemental Application in "red" text and in cell comments.
Guideline references are made with "§" and the corresponding guideline section number.
"Yellow" cells are for Sponsor input. Failure to provide the required attachments and documentation may disqualify your application from consideration or may negatively impact your
point score.
Required attachments are indicated in "orange" throughout the Supplemental Application. Failure to provide the required attachments and documentation may disqualify your
application from consideration or may negatively impact your point score. Electronically attached files must use the naming convention in the Supplemental Application. For Example:
"App1 Payee Data" for Sponsor 1 Payee Data Record/STD. 204.
Threshold items are indicated in "blue" cells.
PLHA Page 1 Instructions & Checklist
11.1.b
Packet Pg. 309 Attachment: PLHA Formula Allocation Application [Revision 1] (2575 : Permanent Local Housing Allocation Program)
City Zip
Eligible Applicant Type: Entitlement
Local Government Recipient of PLHA Formula Allocation: Menifee
29844 Haun Road
City:Menifee
Yes
§302(b) Applicant or Delegating Local Government has submitted the current or prior year's Annual Progress Report to the Department of Housing and Community
Development pursuant to Governemnt Code Section 65400. Yes
File Name:
Approximate PLHA Formula Allocation Amount:$12,580Allowable Local Admin (5%):$251,604
No
App1 TIN
App1 Signature Block
App1 Resolution
§300(d) If Applicant answered "Yes" above, has the Applicant attached the legally binding agreement required by §300 (c) and (d)?
Signature Block - upload in Microsoft Word Document Attached and on USB?Yes
File Name:
File Name:
§302(c)(4)(D) Applicant certifies that the Plan was authorized and adopted by resolution by the Local Government and that the public had an adequate opportunity to
review and comment on its content
§302(c)(7) Applicant certifies that it will ensure that the PLHA assistance is in the form of a low-interest, deferred loan to the Sponsor of the Project, if funds are used for
the development of an Affordable Rental Housing Development. The loan shall be evidenced through a Promissory Note secured by a Deed of Trust.Yes
Threshold Requirements, §302
Applicant Agreement Legally binding agreement between Delegating and Administering Local
Governments
§301(a)(10) Fiscal incentives made by a county to a city within the county to incentivize approval of one or more affordable housing Projects, or matching funds
invested by a county in an affordable housing development Project in a city within the county, provided that the city has made an equal or greater investment in the
Project. The county fiscal incentives shall be in the form of a grant or low-interest loan to an affordable housing Project. Matching funds investments by both the
county and the city also shall be a grant or low-interest deferred loan to the affordable housing Project.
§301(a)(9) Homeownership opportunities, including, but not limited to, down payment assistance.
§301(a)(8) Efforts to acquire and rehabilitate foreclosed or vacant homes and apartments.
§301(a)(7) Accessibility modifications in Lower-income Owner-occupied housing.
§301(a)(6) Assisting persons who are experiencing or At-risk of homelessness, including, but not limited to, providing rapid re-housing, rental assistance,
supportive/case management services that allow people to obtain and retain housing, operating and capital costs for navigation centers and emergency shelters, and
the new construction, rehabilitation, and preservation of permanent and transitional housing.
§301(a)(5) Capitalized Reserves for services connected to the preservation and creation of new permanent supportive housing.
§301(a)(4) Matching portions of funds available through the Low- and Moderate-Income Housing Asset Fund pursuant to subdivision (d) of HSC Section 34176.
§301(a)(3) Matching portions of funds placed into Local or Regional Housing Trust Funds.
§301(a)(2) The predevelopment, development, acquisition, rehabilitation, and preservation of affordable rental and ownership housing, including Accessory Dwelling
Units (ADUs), that meets the needs of a growing workforce earning up to 120 percent of AMI, or 150 percent of AMI in high-cost areas. ADUs shall be available for
occupancy for a term of no less than 30 days.
Yes
§301(a)(1) The predevelopment, development, acquisition, rehabilitation, and preservation of multifamily, residential live-work, rental housing that is affordable to
Extremely low-,Very low-, Low-, or Moderate-income households, including necessary operating subsidies.
Included?§301(a) Eligible activities are limited to the following:
Yes
Entity Address 29844 Haun Road Menifee State CA 92586
On behalf of the entity identified below, I certify that: The information, statements and attachments included in this application are, to the best of my knowledge and belief, true and
correct and I possess the legal authority to submit this application on behalf of the entity identified in the signature block.
Signature Date
Entity name:City of Menifee Phone Number:951-672-677
City Manager
Certifications
Armando G. Villa
TitleAuthorized Representative Printed Name
Applicant agrees to adhere to §503, Reporting.Yes
Applicant agrees to adhere to §502, Cancellation/Termination.
Taxpayer Identification Number Document Attached and on USB?Yes
Instructions: If the Local Government Recipient of the PLHA Formula Allocation delegated its PLHA formula allocation to a Local Housing Trust Fund or to another Local
Government, the Applicant (for which information is required below) is the Local Housing Trust Fund or administering Local Government. The PLHA award will be made to the
Applicant (upon meeting threshold requirements) and the Applicant is responsible for meeting all program requirements throughout the term of the Standard Agreement.
The 302(c)(4) Plan template worksheet requires first choosing one or more of the Eligible Activities listed below. If "Yes" is clicked, the 302(c)(4) Plan worksheet opens a series of
questions about what precise activities are planned. Some specific activities, such as providing downpayment assistance to lower-income households for acquisition of an
affordable home, could be included under either Activity 2 or 9. Please only choose one of those Activities; don't list the downpayment assistance under both Activities.
If the PLHA funds are used for the same Activity but for different Area Median Income (AMI) level, select the same Activity twice (or more times) and the different AMI level the
Activity will serve. Please enter the percentage of funds allocated to the Activity in only the first Activity listing to avoid double counting the funding allocation.
Eligible Applicants §300
§300(a) and (b) Eligible Applicants for the entitlement and Non-entitlement formula component described in Section §100(b)(1) and (2) are limited to the metropolitan cities and
urban counties allocated a grant for the federal fiscal year 2017 pursuant to the federal CDBG formula specified in 42 USC, Section §5306 and Non-entitlement local governments.
Applicant: City of Menifee
Address:
County:
Yes
Yes
YesApplicant agrees to adhere to §501, Audits/Monitoring of PLHA Files.
YesApplicant agrees to adhere to §500, Accounting Records.
Yes
§302(c)(5) Applicant certifies that the Plan submitted is for a term of five years. Local Governments agree to inform the Department of changes made to the Plan in each
succeeding year of the term of the Plan.Yes
§302(c)(6) Applicant certifies that it will ensure compliance with §302(c)(6) if funds are used for the acquisition, construction, or rehabilitation of for-sale housing projects
or units within for-sale housing projects.
§302(c)(8) Has Applicant attached a program income reuse plan describing how repaid loans will be reused for eligible activities specified in Section 301?Yes
Yes
Administration
Local Government Formula Allocation Rev. 5/20/20
N/A
§302(c)(4) Does the application include a Plan in accordance with §302(c)(4)?
CA Zip:92586 Riverside
§300(d) Is Applicant delegated by another Local government to administer on its behalf its formula allocation of program funds?
N/A
File Name:PLHA webpage for Resolution Document Attached and on USB?
State:
Attached and on USB?N/A
§302(c)(3) Applicant certifies that, if the Local Government proposes allocation of funds for any activity to another entity, the Local government’s selection process had no
conflicts of interest and was accesible to the public.
§302(c)(2) Applicant certifies that submission of the application was authorized by the governing board of the Applicant.
Eligible Activities, §301
§302(a) Housing Element compliance: Applicant or Delegating Local Government's Housing Element was adopted by the Local Government’s governing body by the
application deadline and subsequently determined to be in substantial compliance with state Housing Element Law pursuant to Government Code Section 65585.
YES
YES
YES
YES
YES
YES
YES
YES
YES
YES
PLHA Page 1 Formula Allocation Application
11.1.b
Packet Pg. 310 Attachment: PLHA Formula Allocation Application [Revision 1] (2575 : Permanent Local Housing Allocation Program)
Type of Homeowner Assistance
Home Buyer AssistanceHome Buyer AssistanceHome Buyer AssistanceHome Buyer AssistanceHome Buyer Assistance§302(c)(4)(E)(i) Percentage of
Funds Allocated for the
Proposed Activity
100.00%100.00%100.00%100.00%100.00%
§301(a)(9) Homeownership opportunities, including, but not limited to, down payment assistance.
§302(c)(4)(E)(i) Provide a description of how allocated funds will be used for the proposed Activity.Percentage of Funds Allocated for Affordable
Owner-occupied Workforce Housing (AOWH)0%
The City of Menifee will allocate 100% of the PLHA funds for direct homeownership assistance to eligible households by providing down payment assistance on a first-come,
first-served basis to persons not exceeding 80 percent of the HUD-adjusted area median income.The program will provide down payment assistance as a silent-second loan in the
amount of up to $15,000. If the property is no longer maintained as the principal residence of the buyer or is sold prior to the end of the fifteenth (15) year affordability period, all
PLHA direct subsidy funds must be repaid. Otherwise, the loan is converted to a grant after the affordability period.
Complete the table below for each proposed Activity to be funded with 2019-2023 PLHA allocations. If a single Activity will be assisting households at more than one level of Area
Median Income, please list the Activity as many times as needed to capture all of the AMI levels that will be assisted, but only show the percentage of annual funding allocated to the
Activity one time (to avoid double counting).
Funding Allocation Year 2019 2020 2021 2022 2023
§301(a)(8) Efforts to acquire and rehabilitate foreclosed or vacant homes and apartments.
§301(a)(5) Capitalized Reserves for Services connected to the preservation and creation of new permanent supportive housing.
§301(a)(4) Matching portions of funds available through the Low- and Moderate-Income Housing Asset Fund pursuant to subdivision (d) of HSC Section 34176.
§301(a)(7) Accessibility modifications in Lower-income Owner-occupied housing.
§301(a)(3) Matching portions of funds placed into Local or Regional Housing Trust Funds.
§301(a)(2) The predevelopment, development, acquisition, rehabilitation, and preservation of Affordable rental and ownership housing, including Accessory Dwelling Units (ADUs), that
meets the needs of a growing workforce earning up to 120 percent of AMI, or 150 percent of AMI in high-cost areas. ADUs shall be available for occupancy for a term of no less than
30 days.
§302(c)(4)(C) Provide a description of how the Plan is consistent with the programs set forth in the Local Government’s Housing Element.
The City of Menifee Housing Element includes Goal HE-3: Improve opportunities for moderate and low income residents and those with special needs to rent, purchase, or maintain
edequate housing. The PLHA funds will assist as stated in Policy HE-3.1: Homeownership Assistance. Increase homeownership assistance and security for lower and moderate
income households through the provision of financial assistance, education, and collaborative partnerships.
§301(a)(1) The predevelopment, development, acquisition, rehabilitation, and preservation of multifamily, residential live-work, rental housing that is affordable to extremely low-,very
low-, low-, or moderate-income households, including necessary Operating subsidies.
§302(c)(4) Plan Rev. 5/20/20
§302(c)(4)(A) Describe the manner in which allocated funds will be used for eligible activities.
The City of Menifee intends to use PLHA funds towards a Down Payment Assistance Program to provide loans to qualified low- and moderate-income households to purchase
affordable homes.
§302(c)(4)(B) Provide a description of the way the Local government will prioritize investments that increase the supply of housing for households with incomes at or below 60 percent
of Area Median Income (AMI).
PLHA funding will only be allocated to homeownership services, as such, meets the requirement to prioritize investments that increase the supply of housing for households with
incomes at or below 80% AMI.
Activities Detail (Activities Detail (Must Make a Selection on Formula Allocation Application worksheet under Eligible Activities, §301))
§301(a)(6) Assisting persons who are experiencing or At risk of homelessness, including, but not limited to, providing rapid rehousing, rental assistance, supportive/case management
services that allow people to obtain and retain housing, operating and capital costs for navigation centers and emergency shelters, and the new construction, rehabilitation, and
preservation of permanent and transitional housing.
PLHA Page 1 302(c)(4) Plan
11.1.b
Packet Pg. 311 Attachment: PLHA Formula Allocation Application [Revision 1] (2575 : Permanent Local Housing Allocation Program)
File Name:Plan Adoption
§302(c)(4)(D) Evidence that the Plan was authorized and adopted by resolution by the
Local jurisdiction and that the public had an adequate opportunity to review and comment
on its content.
Attached and on USB?Yes
The city will publish on social media, website and provide flyers in efforts to market the program. Also, the city will reach out to all local lenders/real estate agencies and provide them
with information to help market the Down Payment program.
§301(a)(10) Fiscal incentives made by a county to a city within the county to incentivize approval of one or more affordable housing Projects, or matching funds invested by a county in
an affordable housing development Project in a city within the county, provided that the city has made an equal or greater investment in the Project. The county fiscal incentives shall
be in the form of a grant or low-interest loan to an affordable housing Project. Matching funds investments by both the county and the city also shall be a grant or low-interest deferred
loan to the affordable housing Project.
§302(c)(4)(E)(ii) Projected
Number of Households Served 13 13 13 13 13 65
§302(c)(4)(E)(iii) A description of major steps/actions and a proposed schedule for the implementation and completion of the Activity.
§302(c)(4)(E)(iv) Period of
Affordability for the Proposed
Activity
§302(c)(4)(E)(ii) Area Median
Income Level Served 80%80%80%80%80%TOTAL
§302(c)(4)(E)(ii) Unmet share of
the RHNA at AMI Level N/A N/A N/A N/A N/A 0
PLHA Page 2 302(c)(4) Plan
11.1.b
Packet Pg. 312 Attachment: PLHA Formula Allocation Application [Revision 1] (2575 : Permanent Local Housing Allocation Program)
Rev. 5/20/20Legislative and Congressional Information
U.S. House of Representatives 42nd Ken Calvert
District #First Name Last Name
State Assembly Member 67th Melissa Melendez
Provide the Legislative and Congressional information for the applicant and each activity location, (if different than applicant location), included in this application.
To locate or verify the Legislative and Congressional information, click on the respective links below and enter the applicant office location zip code, the activity
location site zip code(s) (i.e. zip code(s) where activities are performed), and any additional activity location site(s), as applicable.
Applicant Office Location
State Senate Member 23rd Mike Morrell
California State Assembly California State Senate U.S. House of Representatives
State Senate Member
U.S. House of Representatives
Activity Location 1 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 2 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 3 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 4 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 5 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 6 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 7 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 8 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 9 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 10 (if different from applicant location)
District #First Name Last Name
State Assembly Member
State Senate Member
U.S. House of Representatives
Activity Location 11 (if different from applicant location)
District #First Name Last Name
State Assembly Member
PLHA Page 1 Legislative Contacts
11.1.b
Packet Pg. 313 Attachment: PLHA Formula Allocation Application [Revision 1] (2575 : Permanent Local Housing Allocation Program)
CITY OF MENIFEE
SUBJECT: Measure DD Affirmation
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Jeff Wyman, Assistant City Manager
REVIEWED BY: Jeff Wyman, Assistant City Manager
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Adopt a Resolution to place an affirmation ballot measure on the general election ballot for
November 3, 2020 to affirm the 2016 voter approved passage of Measure DD, and the
Ordinance 2016-199, codified as chapter 3.26 of the Menifee Municipal Code.
DISCUSSION
At the June 17, 2020 City Council Meeting, the City Council directed staff to prepare all
materials necessary for a Measure DD affirmation measure and language, and to bring the item
back for Council’s review and consideration.
Background
Recently completed community outreach found that for many residents the top priorities for
Measure DD funding ($11,000,000 annually) include maintaining adequately equipped first
responders, locally-controlled funding that cannot be taken by the state, adequate public safety
staffing and services, and fiscal stability. The outreach also identified that there is a good
number of residents who do not know about Measure DD, and/or are not clear that the Measure
DD repeal ballot measure would terminate Measure DD funding and would significantly impact
public safety (police/fire) service levels, as well as likely cuts to roads maintenance, code
enforcement, youth and senior services, on top of budget reductions due to the COVID-19
crisis.
Affirmation Measure
The Community outreach also revealed an option to clarify this, that of a Measure DD
Affirmation Measure, which was presented at the June 17, 2020 Council meeting as a way to
give residents a clear option and for residents to fully understand what they are voting for. The
Resolution accompanying this staff report is the Measure DD Affirmation Measure language to
12.1
Packet Pg. 314
City of Menifee Staff Report
Measure DD Affirmation
July 15, 2020
Page 2 of 3
affirm the 2016 voter approved passage of Measure DD, and Ordinance 2016-199, codified as
chapter 3.26 of the Menifee Municipal Code. The Measure title and language are as follows:
MEASURE ____________
MENIFEE 911 EMERGENCY PUBLIC SAFETY/NO TAX INCREASE
CONTINUATION MEASURE. Shall an ordinance to continue the
existing voter-approved locally controlled 1¢ sales tax providing
$11,000,000 annually to maintain 911 emergency medical and
disaster/preparedness response, paramedic/firefighting
equipment, neighborhood police patrols, street/road repairs, and
other general services until ended by voters, with funding that
cannot be taken by the state, all funds for the City of Menifee, and
with no increase in taxes, be adopted?
YES
NO
Additionally, at the June 17, 2020 City Council meeting, Councilmember Sobek requested a few
projections for the City be brought back for Council’s review. Below is a table noting actual and
estimated population numbers through 2025.
Population Estimates
2016 88,131
2020 97,093
2021* 100,005
2022* 103,005
2023* 106,095
2024* 109,277
2025* 112,555
* Estimated at 3% growth
Also, below is a chart that projects the City’s funding through Fiscal Year 24/25 under several
scenarios. The chart illustrates:
The original budget before COVID-19 and with Measure DD funding maintained (yellow
line)
The anticipated expenditures (green line), actual adopted budget after COVID-19
impacts and Measure DD funding maintained (blue line)
12.1
Packet Pg. 315
City of Menifee Staff Report
Measure DD Affirmation
July 15, 2020
Page 3 of 3
The adopted budget after COVID-19 and without Measure DD funding (gray line)
The adopted budget after COVID-19 without Measure DD and without Vehicle License
Fees (orange line)
The loss of funding on an annual basis is projected to range from $5,861,830 to be as high as
$24,401,570 by FY 24/25 (see chart below).
Staff recommends approving the resolution to place an affirmation ballot measure on the
general election ballot for November 3, 2020 to affirm the 2016 voter approved passage of
Measure DD, and the Ordinance 2016-199, codified as chapter 3.26 of the Menifee Municipal
Code.
FISCAL IMPACT
The estimated cost to put an Affirmation Measure on the November 2020 ballot is between
33,000 to $43,000.
ATTACHMENTS
1. Affirmation Measure Resolution
12.1
Packet Pg. 316
RESOLUTION NO. 20-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE,
CALIFORNIA, REQUESTING PLACEMENT OF A BALLOT MEASURE
ON THE GENERAL ELECTION BALLOT FOR THE CITY OF MENIFEE
ON TUESDAY, NOVEMBER 3, 2020, TO AFFIRM THE 2016 VOTER
APPROVED PASSAGE OF MEASURE DD, WHICH ADOPTED
ORDINANCE 2016-199, CODIFIED AS CHAPTER 3.26 OF THE
MENIFEE MUNICIPAL CODE
WHEREAS, for the reasons articulated immediately below, the City Council of the
City of Menifee (“City” or “Menifee”) has not voted in favor of adoption of a measure to
repeal locally controlled voter-approved funds (“Measure DD Repeal Initiative”), but is
required by California statute to place it on the ballot; and
WHEREAS, pursuant to Elections Code Section 9212, the City prepared a report
on the fiscal and other effects of the Measure DD Repeal Initiative; that Report specifies
that if the local funding provided by Measure DD is revoked, the City would no longer be
able to maintain local vital services at adequate levels including emergency fire, medical,
and police response times, fire protection services, neighborhood police and school
patrols, funding for youth and senior services, and road maintenance; and
WHEREAS, Menifee voters approved locally-controlled funding by nearly 70% to
keep City taxpayer dollars local for the City’s own public safety, emergency response,
roads maintenance, and vital quality of life services with funding that cannot be taken by
the State; and
WHEREAS, residents are relying on local services such as 911 emergency
preparedness, public health and safety, and local business support critical to maintaining
our safety and economic recovery in these challenging times; and
WHEREAS, the City of Menifee wishes to maintain emergency medical and
disaster preparedness and response, fire protection, and neighborhood police patrols;
and
WHEREAS, voter-approved local funding has been used to fix potholes and
sidewalks, resurface streets, and upgrade roads to reduce congestion, create good-
paying jobs, and improve safety for drivers, pedestrians, and our local first responders
who need to travel quickly in emergencies; and
WHEREAS, continuing voter-approved, locally controlled funding that cannot be
taken by the State will maintain paramedic and firefighting equipment, including
emergency healthcare supplies; and
12.1.a
Packet Pg. 317 Attachment: Affirmation Measure Resolution [Revision 1] (2587 : Measure DD Affirmation)
WHEREAS, all funds from a continuation of existing, voter-approved local funding
with no increase in tax rates must continue to stay in Menifee to maintain local services
– no funds can be taken by Sacramento or the federal government; and
WHEREAS, all funds will continue to be subject to independent citizens oversight,
mandatory financial audits, and reports to the community to ensure transparency and that
funds are spent as promised.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MENIFEE,
CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS
FOLLOWS:
SECTION 1. Pursuant to the requirements of the laws of the State of California relating
to general law cities within the state, there shall be, and there is hereby called and ordered
to be held in the City of Menifee, California, on Tuesday, November 3, 2020, an election
of the qualified electors of Menifee on a ballot measure set forth as Exhibit A hereto and
incorporated herein by reference relating to affirmation of Chapter 3.26 of the Menifee
Municipal Code, which has, since 2016, authorized and implemented the collection of a
one-cent sales tax.
SECTION 2. The election called and ordered by this Resolution shall be consolidated with
the general election to be held on Tuesday, November 3, 2020.
SECTION 3. Pursuant to Elections Code Section 10403, the Board of Supervisors of the
County of Riverside is hereby requested to consent and agree to the consolidation of the
election with the general election on Tuesday, November 3, 2020, for the purpose of
consideration of adoption of a council-sponsored initiative ordinance relating to the
affirmation of Chapter 3.26 of the Menifee Municipal Code such that, continuing with the
general election of November 2020, the one-cent sales tax remains a valid and current
tax in the City of Menifee.
MEASURE ____________
MENIFEE 911 EMERGENCY PUBLIC SAFETY/NO TAX INCREASE
CONTINUATION MEASURE. Shall an ordinance to continue the
existing voter-approved locally controlled 1¢ sales tax providing
$11,000,000 annually to maintain 911 emergency medical and
disaster/preparedness response, paramedic/firefighting
equipment, neighborhood police patrols, street/road repairs, and
other general services until ended by voters, with funding that
cannot be taken by the state, all funds for the City of Menifee, and
with no increase in taxes, be adopted?
YES
NO
SECTION 4. That the County Registrar of Voters is authorized to canvass the returns of
the consolidated election. The election shall be held in all respects as if there were only
one election, and only one form of ballot shall be used.
12.1.a
Packet Pg. 318 Attachment: Affirmation Measure Resolution [Revision 1] (2587 : Measure DD Affirmation)
SECTION 5. That the Board of Supervisors is requested to issue instructions to the
County Registrar of Voters to take any and all steps necessary for the holding of the
consolidated election.
SECTION 6. That the City of Menifee recognizes that additional costs will be incurred by
the County by reason of this consolidation and agrees to reimburse the County for any
costs.
SECTION 7. That the City Clerk is hereby directed to file a certified copy of this Resolution
with the Registrar of Voters of the County of Riverside.
SECTION 8. In all particulars not recited in this Resolution, the election shall be held and
conducted as provided by law for holding elections in the City.
SECTION 9. The notice of the time and place of holding the election is given and the City
Clerk is authorized, instructed, and directed to give further or additional notice of the
election, in time, form, and manner as required by law.
SECTION 10. The City Clerk shall certify to the passage and adoption of this Resolution
and enter it into the book of original Resolutions.
PASSED, APPROVED, AND ADOPTED on the 15 day of July, 2020.
________________________________
Bill Zimmerman, Mayor
Attest
___________________________________
Sarah A. Manwaring, City Clerk
Approved as to form:
_______________________________
Jeffrey T. Melching, City Attorney
12.1.a
Packet Pg. 319 Attachment: Affirmation Measure Resolution [Revision 1] (2587 : Measure DD Affirmation)
[INSERT CLERK’S CERTIFICATION FORM]
12.1.a
Packet Pg. 320 Attachment: Affirmation Measure Resolution [Revision 1] (2587 : Measure DD Affirmation)
EXHIBIT A
COUNCIL-SPONSORED INITIATIVE MEASURE TO BE SUBMITTED DIRECTLY TO
THE VOTERS
The City Council for the City of Menifee submits the following initiative measure to
the voters of the City for approval and enactment:
ORDINANCE NO. 2020-XXX
AN ORDINANCE OF THE PEOPLE OF THE CITY OF
MENIFEE, CALIFORNIA TO AFFIRM THE 2016 VOTER-
APPROVED PASSAGE OF MEASURE DD, WHICH HAD
THE EFFECT OF ADOPTING ORDINANCE 2016-199
IMPLEMENTING CHAPTER 3.26 OF THE MENIFEE
MUNICIPAL CODE THEREBY ALLOWING FOR THE
COLLECTION OF LOCALLY-CONTROLLED ONE-CENT
SALES TAX
THE PEOPLE OF THE CITY OF MENIFEE ORDAIN AS FOLLOWS:
SECTION 1. Affirmation of Chapter 3.26. The 2016 voter-approved passage of Measure
DD, which had the effect of adopting Ordinance 2016-199, and thereby enacting Chapter
3.26 of the Menifee Municipal Code and authorizing and implementing to the collection of
a one-cent sales tax, is hereby affirmed. Chapter 3.26 of the Menifee Municipal Code
states, and shall continue to state, as follows:
CHAPTER 3.26: TRANSACTIONS AND USE TAX
Section
3.26.010 Title
3.26.020 Operative date
3.26.030 Purpose
3.26.040 Contract with state
3.26.050 Transaction tax rate
3.26.060 Place of sale
3.26.070 Use tax rate
3.26.080 Adoption of provisions of state law
3.26.090 Limitations on adoption of state law and collection of use
taxes
3.26.100 Permit not required
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3.26.110 Exemptions and exclusions
3.26.120 Amendments
3.26.130 Enjoining collection forbidden
3.26.140 Use tax proceeds
3.26.150 Annual audit
3.26.160 Termination date
§ 3.26.010 TITLE.
This chapter shall be known as the Menifee Transactions and Use
Tax Chapter. The City of Menifee hereinafter shall be called "city."
This chapter shall be applicable in the incorporated territory of the
city.
§ 3.26.020 OPERATIVE DATE.
OPERATIVE DATE means the first day of the first calendar quarter
commencing more than 110 days after the adoption of this chapter,
the date of such adoption being as set forth below.
§ 3.26.030 PURPOSE.
This chapter is adopted to achieve the following, among other
purposes, and directs that the provisions hereof be interpreted in
order to accomplish those purposes:
(A) To adopt a retail transactions and use tax in accordance with
the provisions of Part 1.6 (commencing with § 7251) of Division 2 of
the Cal. Revenue and Taxation Code and § 7285.9 of Part 1.7 of
Division 2 which authorizes the city to adopt this tax ordinance which
shall be operative if a majority of the electors voting on the measure
vote to approve the imposition of the tax at an election called for that
purpose;
(B) To adopt a retail transactions and use tax ordinance that
incorporates provisions identical to those of the Sales and Use Tax
Law of the State of California insofar as those provisions are not
inconsistent with the requirements and limitations contained in Part
1.6 of Division 2 of the Cal. Revenue and Taxation Code;
(C) To adopt a retail transactions and use tax ordinance that
imposes a tax and provides a measure therefore that can be
administered and collected by the State Board of Equalization in a
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manner that adapts itself as fully as practicable to, and requires the
least possible deviation from, the existing statutory and
administrative procedures followed by the State Board of
Equalization in administering and collecting the California State
Sales and Use Taxes;
(D) To adopt a retail transactions and use tax ordinance that can
be administered in a manner that will be, to the greatest degree
possible, consistent with the provisions of Part 1.6 of Division 2 of
the Cal. Revenue and Taxation Code, minimize the cost of collecting
the transactions and use taxes, and at the same time, minimize the
burden of record keeping upon persons subject to taxation under the
provisions of this chapter.
§ 3.26.040 CONTRACT WITH STATE.
Prior to the operative date, the city shall contract with the State
Board of Equalization to perform all functions incident to the
administration and operation of this transaction and use tax
ordinance; provided, that if the city shall not have contracted with the
State Board of Equalization prior to the operative data, it shall
nevertheless so contract and in such a case the operative date shall
be the first day of the first calendar quarter following the execution of
such a contract.
§ 3.26.050 TRANSACTION TAX RATE.
For the privilege of selling tangible personal property at retail, a tax
is hereby imposed upon all retailers in the incorporated territory of
the city at the rate of 1% of the gross receipts of any retailer from the
sale of all tangible personal property sold at retail in said territory on
and after the operative date of this chapter.
§ 3.26.060 PLACE OF SALE.
For the purposes of this chapter, all retail sales are consummated
at the place of business of the retailer unless the tangible personal
property sold is delivered by the retailer or his or her agent to an out-
of-state destination or to a common carrier for delivery to an out-of-
state destination. The gross receipts from such sales shall include
delivery charges, when such charges are subject to the state sales
and use tax, regardless of the place to which delivery is made. In the
event a retailer has no permanent place of business in the state or
has more than one place of business, the place or places at which
the retail sales are consummated shall be determined under rules
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and regulations to be prescribed and adopted by the State Board of
Equalization.
§ 3.26.070 USE TAX RATE.
An excise tax is hereby imposed on the storage, use or other
consumption in the incorporated territory of the city of tangible
personal property purchased from any retailer on and after the
operative date of this chapter for storage, use or other consumption
in said territory at the rate of 1% of the sales price of the property.
The sales price shall include delivery charges when such charges
are subject to state sales or use tax regardless of the place to which
delivery is made.
§ 3.26.080 ADOPTION OF PROVISIONS OF STATE LAW.
Except as otherwise provided in this chapter and except insofar as
they are inconsistent with the provisions of Part 1.6 of Division 2 of
the Cal. Revenue and Taxation Code, all of the provisions of Part 1
(commencing with § 6001) of Division 2 of the Cal. Revenue and
Taxation Code are hereby adopted and made a part of this chapter
as though fully set forth herein.
§ 3.26.090 LIMITATIONS ON ADOPTION OF STATE LAW AND
COLLECTION OF USE TAXES.
In adopting the provisions of Part 1 of Division 2 of the Cal.
Revenue and Taxation Code:
(A) Wherever the State of California is named or referred to as
the taxing agency, the name of the city shall be substituted therefor.
However, the substitution, however, shall not be made when:
(1) The word "State" is used as part of the title of the State
Controller, the State Treasurer, the State Board of Control, the State
Board of Equalization, the State Treasury, or the Constitution of the
State of California;
(2) The result of that substitution would require action to be
taken by or against the city or any agency, officer, or employee
thereof rather than by or against the State Board of Equalization, in
performing the functions incident to the administration or operation
of this chapter;
(3) In those sections, including, but not necessarily limited to,
sections referring to the exterior boundaries of the State of California,
where the result of the substitution would be to:
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(a) Provide an exemption from this tax with respect to certain
sales, storage, use or other consumption of tangible personal
property which would not otherwise be exempt from this tax while
such sales, storage, use or other consumption remain subject to tax
by the State under the provisions of Part 1 of Division 2 of the Cal.
Revenue and Taxation Code; or
(b) Impose this tax with respect to certain sales, storage, use
or other consumption of tangible personal property which would not
be subject to tax by the state under the said provisions of that Code;
(4) In Cal. Revenue and Taxation Code §§ 6701, 6702 (expect
in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828.
(B) The word "City" shall substituted for the word "State" in the
phrase "retailer engaged in business in this State" in Cal. Revenue
and Taxation Code § 6203 or in the definition of that phrase in Cal.
Revenue and Taxation Code § 6203.
§ 3.26.100 PERMIT NOT REQUIRED.
If a seller's permit has been issued to a retailer under Cal. Revenue
and Taxation Code § 6067, an additional transactor's permit shall not
be required by this chapter.
§ 3.26.110 EXEMPTIONS AND EXCLUSIONS.
(A) There shall be excluded from the measure of the transactions
tax and the use tax the amount of any sales or use tax imposed by
the State of California or by any city, city and county, or county
pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law
or the amount of any state-administered transactions or use tax.
(B) There are exempted from the computation of the amount of
transactions tax the gross receipts from:
(1) Sales of tangible personal property, other than fuel or
petroleum products, to the operators of aircraft to be used or
consumed principally outside the county in which the sale is made
and directly and exclusively in the use of such aircraft as common
carriers of persons or property under the authority of the laws of this
state, the United States, or any foreign government.
(2) Sales of property to be used outside the city which is
shipped to a point outside the city, pursuant to the contract of sale,
by delivery to such point by the retailer or his or her agent, or by
delivery by the retailer to a carrier for shipment to a consignee at
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such point. For the purposes of this division, delivery to a point
outside the city shall be satisfied:
(a) With respect to vehicles (other than commercial vehicles)
subject to registration pursuant to Chapter 1 (commencing with
Section 4000) of Division 3 of the Cal. Vehicle Code, aircraft licensed
in compliance with Cal. Public Utilities Code § 21411, and
undocumented vessels registered under Division 3.5 (commencing
with § 9840) of the Cal. Vehicle Code by registration to an out-of-city
address and by a declaration under penalty of perjury, signed by the
buyer, stating that such address is, in fact, his or her principal place
of residence; and
(b) With respect to commercial vehicles, by registration to a
place of business out-of-city and declaration under penalty of perjury,
signed by the buyer, that the vehicle will be operated from that
address.
(3) The sale of tangible personal property if the seller is
obligated to furnish the property for a fixed price pursuant to a
contract entered into prior to the operative date of this chapter.
(4) A lease of tangible personal property which is a continuing
sale of such property, for any period of time for which the lessor is
obligated to lease the property for an amount fixed by the lease prior
to the operative date of this chapter.
(5) For the purposes of divisions (B)(3) and (4) of this section,
the sale or lease of tangible personal property shall be deemed not
to be obligated pursuant to a contract or lease for any period of time
for which any party to the contract or lease has the unconditional
right to terminate the contract or lease upon notice, whether or not
such right is exercised.
(C) There are exempted from the use tax imposed by this chapter,
the storage, use or other consumption in the city of tangible personal
property:
(1) The gross receipts from the sale of which have been subject
to a transactions tax under any state-administered transactions and
use tax ordinance.
(2) Other than fuel or petroleum products purchased by
operators of aircraft and used or consumed by such operators
directly and exclusively in the use of such aircraft as common carriers
of persons or property for hire or compensation under a certificate of
public convenience and necessity issued pursuant to the laws of this
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State, the United States, or any foreign government. This exemption
is in addition to the exemptions provided in Cal. Revenue and
Taxation Code §§ 6366 and 6366.1.
(3) If the purchaser is obligated to purchase the property for a
fixed price pursuant to a contract entered into prior to the operative
date of this chapter.
(4) If the possession of, or the exercise of any right or power
over, the tangible personal property arises under a lease which is a
continuing purchase of such property for any period of time for which
the lessee is obligated to lease the property for an amount fixed by
a lease prior to the operative date of this chapter.
(5) For the purposes of divisions (C)(3) and (4) of this section,
storage, use, or other consumption, or possession of, or exercise of
any right or power over, tangible personal property shall be deemed
not to be obligated pursuant to a contract or lease for any period of
time for which any party to the contract or lease has the unconditional
right to terminate the contract or lease upon notice, whether or not
such right is exercised.
(6) Except as provided in division (C)(7), a retailer engaged in
business in the city shall not be required to collect use tax from the
purchaser of tangible personal property, unless the retailer ships or
delivers the property into the city or participates within the city in
making the sale of the property, including, but not limited to, soliciting
or receiving the order, either directly or indirectly, at a place of
business of the retailer in the city or through any representative,
agent, canvasser, solicitor, subsidiary, or person in the city under the
authority of the retailer.
(7) "A retailer engaged in business in the city" shall also include
any retailer of any of the following: vehicles subject to registration
pursuant to Chapter 1 (commencing with Section 4000) of Division 3
of the Cal. Vehicle Code, aircraft licensed in compliance with Cal.
Public Utilities Code § 21411, or undocumented vessels registered
under Division 3.5 (commencing with § 9840) of the Cal. Vehicle
Code. That retailer shall be required to collect use tax from any
purchaser who registers or licenses the vehicle, vessel, or aircraft at
an address in the city.
(D) Any person subject to use tax under this chapter may credit
against that tax any transactions tax or reimbursement for
transactions tax paid to a district imposing, or retailer liable for a
transactions tax pursuant to Part 1.6 of Division 2 of the Cal.
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Revenue and Taxation Code with respect to the sale to the person
of the property the storage, use or other consumption of which is
subject to the use tax.
§ 3.26.120 AMENDMENTS.
All amendments subsequent to the effective date of this chapter to
Part 1 of Division 2 of the Cal. Revenue and Taxation Code relating
to sales and use taxes and which are not inconsistent with Part 1.6
and Part 1.7 of Division 2 of the Cal. Revenue and Taxation Code,
and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Cal.
Revenue and Taxation Code, shall automatically become a part of
this chapter, provided however, that no such amendment shall
operate so as to affect the rate of tax imposed by this chapter.
§ 3.26.130 ENJOINING COLLECTION FORBIDDEN.
No injunction or writ of mandate or other legal or equitable process
shall issue in any suit, action or proceeding in any court against the
state or the city, or against any officer of the state or the city, to
prevent or enjoin the collection under this chapter, or Part 1.6 of
Division 2 of the Cal. Revenue and Taxation Code, of any tax or any
amount of tax required to be collected.
§ 3.26.140 USE TAX PROCEEDS.
All proceeds of the tax levied and imposed under this chapter shall
be paid into the General Fund for use by the City of Menifee.
§ 3.26.150 ANNUAL AUDIT.
By no later than December 31st of each year, the city's
independent auditors shall complete a financial audit report to
include the revenue raised and expended by this tax to be reflected
in the city's budget. The audit shall review whether the tax revenues
collected pursuant to this chapter are collected, managed and
expended in accordance with the adopting ordinance.
§ 3.26.160 TERMINATION DATE.
The authority to levy the tax imposed by this chapter shall expire
when ended by voters.
SECTION 2. Passage of Only Ballot Measure Adopting Ordinance Affirming Measure DD.
If the Measure titled “An Initiative Measure to Repeal the ‘Menifee Public Safety/Traffic
Congestion Relief/Vital Services Measure,’ Which Imposes a One Percent (1%) Retail
Transactions and Use Tax,” which shall be placed on the November 3, 2020 general
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election ballot (“Measure DD Repeal Initiative”) does not pass with more than 50% of
the votes from the voters of the City of Menifee but the ballot measure adopting this
ordinance affirming Chapter 3.26 of the Menifee Municipal Code does pass with more
than 50% of the votes from the voters of the City of Menifee, then this measure shall
control in its entirety, the Measure DD Repeal Initiative and any other ballot measure
relating to Chapter 3.26 of the Menifee Municipal Code shall be rendered void and without
any legal effect, and Chapter 3.26 of the Menifee Municipal Code relating to the one-cent
sales tax shall remain in full force and effect.
SECTION 3. Passage of Neither Ballot Measures Relating to Chapter 3.26. If neither the
ballot measure adopting this ordinance affirming Chapter 3.26 of the Menifee Municipal
Code nor the Measure DD Repeal Initiative receives more than 50% of the votes from the
voters of the City of Menifee, then the Measure DD Repeal Initiative and any other ballot
measure relating to Chapter 3.26 shall be rendered void and without any legal effect, and
Chapter 3.26 of the Menifee Municipal Code Chapter 3.26 relating to the one-cent sales
tax shall remain in full force and effect.
SECTION 4. Passage of Conflicting Ballot Measures. If both this ballot measure and the
Measure DD Repeal Initiative should pass with each measure receiving more than 50%
of the votes from the voters of the City of Menifee, the ballot measure receiving more
affirmative votes shall be take effect and shall control in its entirety, and any other ballot
measure relating to Chapter 3.26 of the Menifee Municipal Code shall be rendered void
and without any legal effect.
SECTION 5. Severability. If any section, subsection, sentence, clause, or phrase of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The People of the City of Menifee hereby declare that they
would have adopted this ordinance, and each and every section, subsection, sentence,
clause, or phrase not declared invalid or unconstitutional, without regard to whether any
portion of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 6. Effective Date. This ordinance shall take effect according to law ten (10)
days after certification of the election at which it is adopted.
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CITY OF MENIFEE
SUBJECT: Code of Conduct Policy Continuation
MEETING DATE: July 15, 2020
TO: Mayor and City Council
PREPARED BY: Stephanie Roseen, Deputy City Clerk
REVIEWED BY: Sarah Manwaring, City Clerk
APPROVED BY: Armando G. Villa, City Manager
RECOMMENDED ACTION
Review and approve amendments, and adopt the Council Code of Conduct Policy.
DISCUSSION
On July 1, 2020, the City Council reviewed and discussed the proposed Code of Conduct Policy
and provided direction to staff to make amendments and bring the item back to Council.
Amendments are notated in attached redlined Code of Conduct Policy.
FISCAL IMPACT
There is no cost or fiscal impact to adopt the Council Code of Conduct Policy.
ATTACHMENTS
1. Redlined Code of Conduct Policy
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CITY OF MENIFEE
CITY COUNCIL
CODE OF CONDUCT
ADOPTED
XXXX, XX, 2020
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TABLE OF CONTENTS
Page
CHAPTER 1—FORM OF GOVERNMENT
1.1 Form of Government .................................................................................................
CHAPTER 2—COUNCIL POWERS AND RESPONSIBILITIES
2.1 City Council Generally ..............................................................................................
2.2 Mayor and Mayor Pro Tem—Appointment, Power, and Duties ........................
2.3 Council Actions ..........................................................................................................
2.4 Councilmember Committees ....................................................................................
2.5 Establishment and Appointment of Council Advisory Bodies ............................
CHAPTER 3—LEGAL AND ETHICAL STANDARDS
3.1 Preamble ......................................................................................................................
3.2 Public Interest .............................................................................................................
3.3 Conduct .......................................................................................................................
3.4 Conflict of Interest ......................................................................................................
3.5 Compliance and Enforcement—All Rules ..............................................................
3.6 AB 1234—Required Ethics Training ........................................................................
CHAPTER 4—COMMUNICATIONS
4.1 Written Communications ..........................................................................................
4.2 Request for Staff Resources .......................................................................................
4.3 Relationship/Communications with Staff ..............................................................
4.4 Council Relationship/Communication with Council Advisory Bodies .............
4.5 Handling of Litigation and Other Confidential Information ...............................
4.6 Representing an Official City Position ....................................................................
4.7 Quasi-Judicial Role/Ex Parte Contacts ....................................................................
4.8 No Attorney-Client Relationship .............................................................................
CHAPTER 5—COUNCIL ADVISORY BODIES
5.1 Boards, Commissions, and Committees Generally ...............................................
5.2 Board, Commission, and Committee Organization and Conduct ......................
5.3 Board, Commission, and Committee Appointments ............................................
5.4 Boards, Commissions, and Committees—Vacancy of Office ...............................
CHAPTER 6—MEETINGS
6.1. Ralph M. Brown Act ..................................................................................................
6.2 Regular Meetings .......................................................................................................
6.3 Study Sessions.............................................................................................................
6.4 Closed Sessions ...........................................................................................................
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6.5 Special and Emergency Meetings ............................................................................
6.6 Meeting Agendas .......................................................................................................
6.7 Rules of Procedure .....................................................................................................
6.8 Decorum ......................................................................................................................
6.9 Time of Adjournment ................................................................................................
6.10 Agenda Packets ..........................................................................................................
CHAPTER 7—COUNCIL FINANCIAL MATTERS
7.1 Compensation .............................................................................................................
7.2 Benefits
7.3 City Council Budget and Expenses ..........................................................................
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CHAPTER 1—FORM OF GOVERNMENT
1.1 Form of Government
1.1.1 The City of Menifee municipal government operates under a council-
manager form of government as established by the City Municipal Code.
1.1.2 Under this form of government, the Council provides legislative direction,
sets City policy and monitors its execution by City staff. The City Manager
serves as the City's chief administrative officer and is responsible for
directing the day-to-day operations of the City.
1.1.3 The key provisions that outline City of Menifee's council-manager form of
government are found in Chapter 2.08 of the City Municipal Code.
"The City Manager shall be the administrative head of the
government of the city under the direction and control of the City
Council, except as otherwise provided in this chapter. The City
Manager shall be responsible for the efficient administration of all
affairs of the city which are under his or her control." The City
Manager shall be expected and shall have the power as stated in
section 2.08.060 of the Menifee Municipal Code.
Specifically, the Menifee Municipal Code includes the following
provisions:
1.1.3.1 Appoint, remove, promote and demote any and all officers and
employees of the city, except elected officers and the City
Attorney, and specifically including the City Clerk and the City
Treasurer (although the City Manager may serve in these
positions as well), subject to all applicable personnel rules and
regulations which may be adopted by the city.
1.1.3.2 The City Council and its members shall deal with the
administrative services of the city only through the City
Manager, except for the purpose of inquiry, and neither the City
Council nor any member thereof shall give orders to any
subordinates of the City Manager.
1.1.3.3 For purposes hereof, INQUIRY means any and all
communications short of giving orders, directions or
communications short of giving orders, directions or instructions
to any member of the administrative staff.
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NOTE: See Chapter 4, Communications, for additional
information regarding communications with staff.
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CHAPTER 2—COUNCIL POWERS AND RESPONSIBILITIES
2.1 City Council Generally
2.1.1 The City CouncilCity Council has the power, in, in the name ofname
of the City, to do anddo and perform all acts and things appropriate to a
municipal corporation and the general welfare of its inhabitants, which are
not specifically prohibited by the constitution, the City Municipal Code, or
State or Federal laws.
2.1.2 The Council acts as a body. Policy is established by majority vote. A
decision of the majority binds the Council to a course of action. The
Council majority may be a majority of the quorum of the Council.
2.1.3 No Councilmember has extraordinary powers beyond those of other
members (except as may otherwise be provided in State law). All
members, including the Mayor, have equal powers.
2.1.4 No member of the Council is permitted to hold any other City office or
City employment (except as may otherwise be provided in the City
Municipal Code).
2.2 Mayor and Mayor Pro Tem—Appointment, Power, and Duties
2.2.1 The selection of Mayor Pro Tem occurs annually in December, during the
Council’s “Reorganization” meeting by majority vote of the City Council.
2.2.2 The Mayor Pro Tem is responsible to select the Annual Initiative (or theme)
to be included in the City’s annual budget book, displayed at the City’s
annual Fourth of July event, and used throughout the fiscal year in City
communications, press, and events.
2.2.22.2.3 The Mayor is the presiding officer of the City Council. In the
Mayor's absence, the Mayor Pro Tem shall perform the duties of the Mayor.
2.2.32.2.4 The Mayor, in partnership with the District Representative, is the
official head of the City for all ceremonial purposes.
Formatted: Not Expanded by / Condensed by
Formatted: List Paragraph, Left, Right: 0", Line
spacing: single, No bullets or numbering, Tab stops:
Not at 1.07"
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2.2.42.2.5 The Mayor may perform such other duties consistent with the
mayoral office as may be prescribed by the City Municipal Code or as may
be imposed by the Council.
2.2.52.2.6 The Mayor does not possess any power of veto.
2.2.62.2.7 The Mayor, or Council designee, coordinates with the City Manager
in the development review of agendas for meetings of the City Council.
Once the agenda is published, the City Manager may withdraw an item;
however, only the City Council may otherwise alter the agenda.The
complete agenda setting process is outlined in City Council Policy No. 1:
Rules of Decorum and Procedure for the Conduct of City Council Meetings.
2.2.72.2.8 The Mayor Pro Tem serves at the pleasure of the Council and can be
replaced at any time by a majority vote of the Council.
2.3 Council Actions
2.3.1 Legislative actions by the City Council can be taken by means of
ordinance, resolution, or minute action duly made and passed by the
majority (unless otherwise provided).
2.3.2 Public actions of the Council are recorded in the minutes of the City
Council meeting. The City Clerk is required to make a record only of
business actually passed upon by a vote of the Council and is not required
to record any remarks of Councilmembers or of any other person, except
at the special request of a Councilmember, with the consent of the
Council.
2.3.3 Actions of the Council concerning confidential property, personnel,
and/or legal matters of the City are to be reported consistent with State
law.
2.4 Councilmember Committees (Refer to City Council Policy NoPolicy No. 2 –
Regional Boards and Regional Commissions – Assignments and Reporting.)
2.4.1 The City Council may organize itself into standing and/or special/ad hoc
committees of the Council to facilitate Council review and action
regarding certain matters referred to them by the City Council or in
accordance with City Council Policy No. 2, City Council Standing
Committees, Regional Boards and Regional Commissions – Assignments
and Reporting.
2.4.2 All work undertaken by a Councilmember committee must originate with
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the Council or as permitted under City Council Policy No. 2. All actions
of committees shall be reported to the Council.
2.4.3 The Council may create or dissolve standing committees at any time by
the affirmative vote of a majority of the Council.
2.4.4 The Mayor annually appoints members to standing committees at the
annual Council Reorganization in December.
2.4.5 The Council or the Mayor may create special or ad hoc committees. The
Mayor appoints members to special or ad hoc committees.
2.4.6 The Council may dissolve special or ad hoc committees.
2.4.7 If permitted by the Ralph M. Brown Act, other members of the Council
not assigned to a committee may attend meetings of a committee, as an
observer, however, they shall be seated with the audience and may not
participate in any manner or address the committee.
2.4.8 If an absence is anticipated on a committee and that absence may impede
the work of the committee, the assigned alternate member
will attend in the committee member’s place. If the
alternate member is not available, the committee chair or
other member may request that the Mayor designate another member of
the Council to attend for the absent member and serve as an alternate
member of the committee, provided that the member's attendance, in the
opinion of the City Attorney, will comply with the Brown Act. The term
for service by the alternate member will be the term designated in the
appointment, or for one meeting, if no term is specified.
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2.5 Establishment and Appointment of Council Advisory Bodies
2.5.1 The Menifee Municipal Code establishes a Planning Commission and a
Parks, Recreation and Trails Commission.
2.5.2 The City Council may establish by ordinance or resolution, commissions
and committees to assist the Council in making its policy decisions.
2.5.3 The rules of procedure and code of conduct that govern the City Council
apply with equal force to all Commissions and Council advisory bodies.
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CHAPTER 3—LEGAL AND ETHICAL STANDARDS
3.1 Preamble
The residents and businesses of Menifee are entitled to have fair, ethical, and
accountable local government. Such a government requires that public officials:
Comply with both the letter and the spirit of the laws and policies affecting
operations of the government;
Be independent, impartial, and fair in their judgment and actions;
Use their public office for the public good, not for personal gain; and
Conduct public deliberations and processes openly, unless legally
confidential, in an atmosphere of respect and civility.
To this end, the Menifee City Council has adopted a code of ethics to encourage
public confidence in the integrity of local government and its fair and effective
operation.
This City Council code of ethics shall reside in two documents—the City Council
Code of Conduct and the City Council Personal Code of Conduct. The City
Council Code of Conduct and the Personal Code of Conduct shall not be
interpreted to conflict with other rights and responsibilities of public officials set
forth in this code or Federal, State, or local law. The City Council Code of Conduct
shall be considered to be the definitive document relating to ethical conduct by
City of Menifee Councilmembers. The Personal Code of Conduct shall be
considered to be a summary of the full City Council Code of Conduct.
3.2 Public Interest
3.2.1 Recognizing that stewardship of the public interest must be their primary
concern, Councilmembers shall work for the common good of the people
of Menifee and not for any private or personal interest. Councilmembers
must endeavor to treat all members of the public and issues before them
in a fair and equitable manner.
3.2.2 Councilmembers shall comply with the laws of the nation, the State of
California, and the City in the performance of their public duties. These
laws include, but are not limited to: the United States and California
constitutions; the City of Menifee Municipal Code; laws pertaining to
conflicts of interest, election campaigns, financial disclosures, employer
responsibilities, and open processes of government; and City ordinances
and policies.
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3.3 Conduct
3.3.1 Councilmembers shall refrain from abusive conduct, personal charges,
written, verbal, or public, and continuous attacks upon the character or
motives of other members of the City Council, commissions, committees,
City Manager, City Manger’s staff, City Attorney, or the public.
3.3.2 Councilmember duties shall be performed in accordance with the
processes and rules of order established by the City Council.
3.3.3 Councilmembers shall inform themselves on public issues, listen
attentively to public discussions before the body, and focus on the
business at hand.
3.3.4 Council decisions shall be based upon the merits and substance of the
matter at hand.
3.3.5 It is the responsibility of Councilmembers to publicly share substantive
information that is relevant to a matter under consideration that they have
received from sources outside of the public decision-making process with
all other Councilmembers and the public prior to taking action on the
matter.
3.3.6 When needed, at the discretion of the City Manager, appropriate City staff
should be involved when Councilmembers meet with officials from other
agencies, jurisdictions, or any project applicant to ensure proper staff
support as needed and to keep staff informed.
3.3.7 Councilmembers shall not attend internal staff meetings or meetings
between City staff and third parties unless invited by City staff or directed
by Council to do so.
3.3.8 Policy Role
3.3.8.1 Councilmembers shall respect and adhere to the council-
manager structure of Menifee City government as provided in
State law and the City Municipal Code.
3.3.8.2 Councilmembers shall support the maintenance of a positive
and constructive environment for residents, businesses, and City
employees.
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3.3.9 Implementation
3.3.9.1 Ethics standards shall be included in the regular orientations for
City Council candidates. Councilmembers entering office and
upon reelection to that office shall sign a City Council Personal
Code of Conduct statement (Attachment 1) affirming they have
read and understand this Menifee City Council Code of
Conduct.
3.4 Conflict of Interest
3.4.1 In order to assure their independence and impartiality on behalf of the
public good, Councilmembers are prohibited from using their official
positions to influence government decisions in which they have a financial
interest or where they have an organizational responsibility or a personal
relationship that would present a conflict of interest under applicable
State law.
3.4.2 In accordance with State law, Councilmembers must file annual written
disclosures of their economic interests.
3.4.3 Councilmembers shall not take advantage of services or opportunities for
personal gain by virtue of their public office that are not available to the
public in general.
3.4.4 Councilmembers shall respect and preserve the confidentiality of
information provided to them concerning the confidential matters of the
City. They must neither disclose confidential information without proper
legal authorization nor use such information to advance the personal,
financial, or private interests of themselves or others.
3.4.5 City Councilmembers should avoid any action that could be construed as,
or create the appearance of, using public office for personal gain,
including use of City stationery or other City resources to obtain or
promote personal business.
3.4.6 Public resources not available to the general public (e.g., City staff time,
equipment, supplies, or facilities) shall not be used by Councilmembers
for private gain or personal purposes.
3.4.7 In keeping with their role as stewards of the public interest,
Councilmembers shall not appear on behalf of the private interests of a
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third party before the City Council or any commission, or
committee or proceeding of the City, except as permitted by law.
3.4.8 To the best of their ability, Councilmembers shall represent the official
policies and positions of the City Council. When presenting their personal
opinions or positions publicly, members shall explicitly state they do not
represent the Council or the City.
3.4.9 City of Menifee City Municipal Code Provisions
3.4.9.1 Financial Interests in City Contracts Prohibited.
No officer or employee of the City shall become financially
interested except by testate or intestate succession, either
directly or indirectly, in any contract, sale, purchase, lease, or
transfer of real or personal property to which the City is a party
or be employed by any public service corporation regulated by
or holding franchises in the City.
3.4.9.2 Nepotism.
The City Manager shall not appoint to a salaried position under
the City government any person who is a relative by blood or
marriage within the second degree of any one or more of the
members of such Council and neither shall any department head
or other officer having appointive power appoint any relative
within such degree to any such position.Consistent with Human
Resources Policy HR-15 (Nepotism) and Section 11 of the
Personnel Rules (Relatives Working for the City), no person who
is a relative of any City Council Member, City Commissioner
shall be appointed to a position within the City organization. For
these purposes a “relative” is someone related by blood or
marriage within the second degree (i.e., parent, child, brother,
sister, mother, father, grandchild, grandparent, uncle, aunt) to a
City Council Member or City Commissioner.
3.4.9.3 Political Activities Prohibited; Discrimination.
This provision provides that:
1. Councilmembers shall not ask employees to take an active
part in any municipal or other political campaignNo
employee shall, while in uniform or during the
Formatted: Body Text, Indent: Left: 1.82", Right: 0.08",
No bullets or numbering
Formatted: Condensed by 0.05 pt
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employee's working hours,. take an active part in any
municipal or other political campaign.
2. No employee shallCouncilmembers shall not seek or accept
contributions for or against a candidate or issue from
employees, while t h e y a r e in uniform or during the
employee's work hours,. seek or accept contributions for or
against a candidate or issue.
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3. Councilmembers shall not ask an employee to An employee
may not seek or accept signatures to any petition for or
against any such candidate or issue during his or her work
hours.
4. No person in the classified service shall be employed,
promoted, demoted, or discharged or in any way favored
or discriminated against because of political opinions or
affiliations or because of race or religious belief.
5. For purposes of this section, the term "employee" shall
include contract employees and consultants who function
as City employees.
3.4.10 Menifee City Code Provisions
3.4.10.1 Use of City Property—Limited to Lawful Business of City.
No person or persons other than City officials or employees
shall use any City-owned equipment, tools, or paraphernalia
other than for the purpose of conducting the lawful business of
the City.
3.4.10.2 Use of City Property for Private Purposes by City Official,
Employee, etc.
No City official, City employee, or other person shall borrow,
take, or remove any City-owned equipment, tools, or
paraphernalia for private use.
3.4.10.3 Use of City Property—Loan, etc., by City Official, Employee,
etc.
No City official, City employee, or any other person shall lend,
give, or transfer possession of such City-owned equipment,
tools, or paraphernalia to any other City official, employee, or
any other person with knowledge that the same shall be used
for private purposes.
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3.4.11 California State Law Regarding Conflicts
Four key areas of California State law regulate the ethics of public
officials.
3.4.11.1 Constitutional prohibitions
State law strictly forbids elected and appointed public officials
from accepting free or discounted travel from transportation
companies. The penalty for a violation includes the forfeiture of
office.
3.4.11.2 Contractual conflicts of interest
This prohibition, found in Government Code Section 1090,
applies to elected and appointed officials as well as other City
staff members. It prohibits the City from entering into a contract
if one of its members (i.e., a Councilmember) is financially
interested in the contract. If the bar (or prohibition) applies, the
agency is prohibited from entering into the contract whether or
not the official with the conflict participates or not. In some
limited circumstances, officials are allowed to disqualify
themselves from participation and the agency may enter into
the contract.
Financial interest has been defined to include employment,
stock/ownership interests, and membership on the board of
directors of a for-profit or nonprofit corporation, among others.
Violations can be charged as a felony. A person convicted of
violating Gove r nme nt Code Section 1090 is prohibited
from ever holding public office in the State.
3.4.11.3 Political Reform Act—Conflicts of Interest
The Political Reform Act (PRA) was adopted by the voters in
1974 and is the primary expression of the law relative to
conflicts of interest (and campaign finance) in California. The
Act created the Fair Political Practices Commission (FPPC), a
five-member State board which administers the Act.
The Act and the regulations are complex and are continuously
subjected to official interpretation. The following synopsis of
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key parts of the Act will be helpful in spotting issues; however,
the FPPC and/or City Attorney should be consulted for further
advice and clarification.
With respect to conflicts of interest, the FPPC has promulgated a
regulation which establishes an analysis which assists in
determining whether a public official is participating in a
government decision in which they have a qualifying financial
interest and whether it is reasonably foreseeable that the
decision will have a material financial effect on the public
official's financial interest, which is distinguishable from the
effect the decision will have on the public generally.
3.4.11.3.1 If a member has a conflict of interest regarding a
particular decision, they must refrain from making
or participating in the making of a decision unless
otherwise permitted by law.
If a public official has a financial interest that gives
rise to a conflict of interest, one of the key
determinations in the eight-step analysis is to
determine whether or not the public official is
"participating in" or "making" a governmental
decision.
3.4.11.3.1.1 A public official makes a government
decision when they do the following:
Vote on a matter.
Appoint a person.
Obligate or commit his or her
agency to any course of action.
Enter into any contractual
agreement on behalf of his or her
agency.
Determine not to act in certain
circumstances.
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3.4.11.3.1.2 A public official participates in
making governmental decisions when
acting within the authority of his or
her position, they do the following:
Negotiate without significant
substantive review with a
governmental entity or private
person regarding a governmental
decision.
Advise or make recommenda-
tions to the decision-maker either
directly or without significant
intervening substantive review
by:
— Conducting research or an
investigation which requires
the exercise of judgment on
the part of the official and
the purpose of which is to
influence governmental
decisions; or
— Preparing or presenting any
report, analysis, or opinion
orally or in writing which
requires the exercise of
judgment on the part of the
official and the purpose of
which is to influence a
governmental decision.
3.4.11.3.2 When a public official has a qualifying financial
interest, that official may not use their office or
otherwise attempt to influence governmental
decisions or make appearances or contacts on behalf
of a business entity, client, or customer.
3.4.11.3.3 If an official has a qualifying financial interest, there
are nevertheless exceptions which allow a public
official to make an appearance before an agency in
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very limited circumstances. The one that is most
commonly encountered is an appearance by a
public official to represent himself or herself with
respect to a proposed project or change in their
neighborhood. If the appearance is permitted under
State law, the appearance is limited to appearing at
a public meeting at the podium and addressing a
commission, or the City Council. The official may not
contact members of staff, the City Manager, or City
Attorney, or discuss the matter with other
Councilmembers. A public official with a conflict
cannot interact with staff on that issue other than to
ask questions, pay fees, etc.
3.4.11.3.4 Political Reform Act—Gifts, etc.
Qualifying gifts of $50 or more must be reported on
an official's Statement of Economic Interest (SEI). In
addition, the Political Reform Act imposes a limit on
gifts a local official can receive. The dollar amount
of the gift limit is modified every odd year to reflect
changes in the Consumer Price Index.* There are
various exceptions that apply to whether or not a
gift is a "qualifying gift." In some instances, the gift
limit does not apply (e.g., wedding gifts); however,
the obligation to report the gift typically does apply.
A gift is a payment made by any person of
anything of value, whether tangible or
intangible, real or personal property, a good or
service that provides a personal benefit to an
official when the public official does not
provide goods or services of equal or greater
value. It can include forgiveness of a debt, a
rebate or discount unless the rebate or discount
is made through the regular course of business
to members of the public.
There are exceptions to gifts for informational
material, gifts that are returned unused, gifts
from relatives—close family, campaign
* The gift limit can be found in Government Code §89503.
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contributions, home hospitality, benefits
commonly exchanged, reciprocal exchanges,
acts of neighborliness, bona fide dating
relationship, acts of human compassion,
ceremonial role, etc.
There are specific regulations for how gifts are
valued, particularly with the value of tickets
and passes and attendance at dinners and
events.
Gifts can be given to the public agency and
they are not charged as gifts to an individual
who may use the gift (e.g., tickets) provided
the express terms of the appropriate regulation
are satisfied.
3.4.11.3.4.1 Travel Reimbursements
The Political Reform Act contains
extensive regulations on travel
reimbursements; however, travel
payment by one's own public agency
as part of your official duties are
typically exempt. Reimbursement
from other entities (other than
transportation companies) within
California and outside of California
are subject to very specific rules.
3.4.11.3.4.2 Honoraria
Honoraria are defined as a payment
made in return for giving a speech,
writing an article, or attending a public
or private conference, convention,
meeting, social event, meal, or similar
gathering. Honoraria should be
distinguished from campaign funds
that go into that person's campaign or
to a political party. Campaign funds
cannot be used for personal benefit.
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Local elected officials or candidates
may not accept honoraria. A local
agency employee who is required
to file a Statement of Economic
Interest (Form 700) may not accept
honoraria from any source
requiring disclosure on a public
official's SEI. There are
approximately 12 exceptions to
honoraria, including payments
made for comedic, theatrical, and
musical performances; income
from bona fide personal services in
connection with teaching,
practicing law, etc.; and travel,
lodging, and subsistence in
connection with a speech, limited
to the day before, day of, and day
after within the United States.
The exceptions for income from
personal services in connection
with teaching and practicing law
do not apply if the sole or
predominant activity is giving
speeches.
3.4.11.3.4.3 Political Reform Act—Mass Mailings
A mass mailing is defined as 200 or
more substantially similar pieces of
mail sent at public or private expense
by a public official within a calendar
month.
Sent at Private Expense—If sent for
a political purpose, sender must
place the name and address on the
outside of the envelope.
Sent at Public Expense—These
mailings are subject to strict
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limitations. For example, the
mailing may not contain the name
or pictures of elected officials
except as part of the standard
letterhead, and within the confines
of that regulation they cannot be of
different size or otherwise
emblazoned on the mailing.
Because the rules are complex, staff
should be consulted for assistance.
3.4.11.3.4.4 Political Reform Act—Enforcement
The FPPC can assess administrative
fines and penalties for violation of the
Act. The District Attorney and the
State Attorney General may prosecute
violators as civil or criminal matters.
Violators may also be removed from
office pursuant to Government Code
Section 3060.
3.4.11.5 Common Law Conflicts of Interest
This is the judicial expression of the public policy
against public officials using their official position
for private benefit. An elected official bears a
fiduciary duty to exercise the powers of office for
the benefit of the public and is not permitted to use
those powers or their office for the benefit of any
private interest. This common law doctrine
continues to survive the adoption of various
statutory expressions of conflict law.
3.4.11.6 Appearance of Impropriety
When participation in action or decision-making as
a public official does not implicate the specific
statutory criteria for conflicts of interest; however,
participation still does not "look" or "feel" right, that
public official has probably encountered the
appearance of impropriety.
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For the public to have faith and confidence that
government authority will be implemented in an
even-handed and ethical manner, public officials
may need to step aside even though no technical
conflict exists. An example is where a long-term
nonfinancial affiliation exists between the public
official and an applicant or the applicant is related
by blood or marriage to the official. For the good of
the community, members who encounter the
appearance of impropriety should step aside.
3.5 Compliance and Enforcement—All Rules
Councilmembers take an oath when they assume their office in which they
promise to uphold the laws of the State of California, the City of Menifee, and the
United States of America. Consistent with this oath is the requirement of this
Council policy to comply with the laws as well as report violations of the laws and
policy of which they become aware.
3.5.1 Any suspected violation or alleged violation by a Councilmember must be
reported to the City Attorney. In the case of a City staff member making
the report regarding a Councilmember, the report should be made to the
City Manager who will then report it to the City Attorney. Upon report,
the City Manager and City Attorney will follow the protocosprotocols
for addressing the violation or alleged violation:
3.5.1.1 If the City Manager and City Attorney agree that the violation
or alleged violation is minor in nature, either the City Manager
or City Attorney may contact the individual Councilmember
and advise the member of the concern and seek to resolve the
matter.
3.5.1.2 In implementing the provisions of this section, the City
Attorney will be authorized to conduct all inquiries and
investigations as necessary to fulfill their obligation.
NOTE: State laws governing conflicts of interest are written to ensure that
actions are taken in the public interest. These laws are very complex.
Councilmembers should consult with the City Attorney, their own
attorney, or the Fair Political Practices Commission for guidance in
advance.
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3.5.1.3 For purposes of Sections 3.5.1.1 and 3.5.1.2, the incident or
violation is not minor if it involves the injury or potential injury
to any person (e.g., physical, emotional, defamation,
harassment, etc.), significant liability to the City Treasury or
the probability for a repeat occurrence.
3.5.2 Councilmembers wishing to report a suspected violation by a staff
member should report it to both the City Manager and City Attorney.
3.5.3 This policy and the protocols set forth are alternatives to any remedy that
might otherwise be available or prudent. In order to ensure good
government, any individual, including the City Manager and City
Attorney, who believes a violation may have occurred is hereby authorized
to report the violation to other appropriate authorities.
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3.5.4 These same protocols may be utilized for any suspected violations or
alleged violations by a Council advisory body member. In addition to
those protocols, the City Manager or City Attorney may also refer the matter
to the City Council if further action is needed.
3.6 AB 1234—Required Ethics Training
AB 1234 requires elected or appointed officials who are compensated for their
service or reimbursed for their expenses to take two hours of training in ethics
principles and laws every two years. It is the City’s policy to emphasize the
importance of ethics in government and although not required, it is highly
encouraged that all advisory body members, including Committees and
Commissions, adhere to the same requirements. The training must occur within
two months of assuming office and be renewed within two months of the
expiration of the current certificate.
The training must cover general ethics principles relating to public service and
ethics laws including:
• Laws relating to personal financial gain by public officials (including bribery
and conflict of interest laws);
• Laws relating to office-holder perks, including gifts and travel restrictions,
personal and political use of public resources, and prohibitions against gifts
of public funds;
• Governmental transparency laws, including financial disclosure requirements
and open government laws (the Brown Act and Public Records Act);
• Laws relating to fair processes, including fair contracting requirements,
common law bias requirements, and due process.
3.6.1 Enforcement
• Noncompliant Council or advisory body members may not attend
conferences or training (except ethics training), using tickets provided
through the City’s ticket distribution program at the City’s expense,
during the period of noncompliance;
• Should noncompliance by an advisory body member continue for 30
days without substantiated extenuating circumstances such as
illness, disability, family tragedy, etc., the City Clerk is directed to
bring the matter to the City Council for consideration of removing
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the advisory body member from service on their respective body;
and
• Training deadlines may be temporarily postposed for noncompliant
advisory body members who are temporarily unable to fulfill their
duties, including attending scheduled meetings. Training must be
completed within 60 days of returning to service.
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CHAPTER 4—COMMUNICATIONS
4.1 Written Communications
4.1.1 Written communications addressed to the City Council and all
commission legislative bodies are to be referred to the City Clerk for:
Forwarding to the Council and Commissioners with their agenda packet,
or place in their in-box.
4.2 Request for Staff Resources
4.2.1 Council requests for research or other staff work must be directed to the
City Manager, or to the City Attorney if regarding legal matters.
If more than one hour of staff time will be required to complete the
task/project, the item will be agendized to ask the City Council if time
should be spent on preparing a report on the proposed item.
Staff responses prepared to Council inquiries shall be distributed to all
City Councilmembers through the Council monthly update.
4.3 Relationship/Communications with Staff
Staff serves the City Council, through the authority of the City Manager, as a whole,
therefore:
4.3.1 A Councilmember shall not direct staff to initiate any action, change a
course of action, or prepare any report. A Councilmember shall not initiate
any project or study without the approval of the majority of the Council.
4.3.2 Councilmembers shall not attempt to pressure or influence discussions,
recommendations, workloads, schedules, or department priorities absent
the approval of a majority of the Council.
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4.3.3 When preparing for Council meetings, Councilmembers should direct
questions ahead of time to the City Manager during Council briefings
so that staff can provide the desired information at the Council meeting.
4.3.4 Any concerns by a member of the City Council regarding the behavior or
work of a City employee should be directed to the City Manager privately
to ensure the concern is resolved. Councilmembers shall not reprimand
employees directly nor should they communicate their concerns to anyone
other than the City Manager.
4.3.5 Councilmembers may direct routine inquiries to the City Manager.
4.3.6 Councilmembers serving on Council committees or as the City's
representative to an outside agency may interact directly with City staff
assigned to that effort as the City Manager's designee. The City staff
member so designated and assigned will keep the City Manager
appropriately informed.
4.3.7 Soliciting political support from staff (e.g., financial contributions, display
of posters or lawn signs, name on support list, etc.) is prohibited. City
staff may, as private citizens with constitutional rights, support political
candidates, but all such activities must be done away from the workplace
and may not be conducted while in uniform.
4.4 Council Relationship/Communication with Council Advisory Bodies
4.4.1 Councilmembers shall not attempt to pressure or influence commission,
or committee decisions, recommendations, or priorities absent the
approval of the majority of the Council. However, a majority vote of
the City Council can authorize a work item for an advisory body
under certain circumstances.
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4.5 Handling of Litigation and Other Confidential Information
4.5.1 All written materials and verbal information provided to Councilmembers
on matters that are confidential and/or privileged under State law shall be
kept in complete confidence to ensure that the City's position is not
compromised. No disclosure or mention of any information in these
materials may be made to anyone other than Councilmembers, the City
Attorney, or City Manager.
4.5.1.1 Confidential materials provided in preparation for and during
Closed Sessions shall not be retained and electronic copies must
be deleted or documents returned to staff at the conclusion of
the Closed Session.
4.5.1.2 Confidential materials provided to Councilmembers outside of
Closed Sessions must be destroyed, deleted, or returned to staff
within thirty (30) days of their receipt.
4.5.1.3 Councilmembers may not request confidential written
information from staff that has not been provided to all
Councilmembers.
4.6 Representing an Official City Position
4.6.1 City Councilmembers may use their title only when conducting official
City business, for information purposes, or as an indication of background
and expertise, carefully considering whether they are exceeding or
appearing to exceed their authority.
4.6.2 Once the City Council has taken a position on an issue, all official City
correspondence regarding that issue will reflect the Council's adopted
position.
4.6.3 In most instances, the Council will authorize the Mayor, at a public
City Council meeting, to send letters stating the City's official
position to appropriate legislators.
4.6.4 If any Councilmember would like to prepare a letter, the City Manager
must authorize it.
4.6.5 If a member of the City Council appears before another governmental
agency organization to give a statement on an issue affecting the City, the
Councilmember should indicate the majority position and opinion of the
Council.
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4.6.6 Personal opinions and comments may be expressed only if the
Councilmember clarifies that these statements do not reflect the official
position of the City Council.
4.7 Quasi-Judicial Role/Ex Parte Contacts
The City Council has a number of roles. It legislates and makes administrative and
executive decisions. The Council also acts in a quasi-judicial capacity or "like a
judge" when it rules on various permits, licenses, and land use entitlements.
In this last capacity, quasi-judicial, the Council holds a hearing, takes evidence,
determines what the evidence shows, and exercises its discretion in applying the
facts to the law shown by the evidence. It is to these proceedings that the rule
relative to ex parte contacts applies.
4.7.1 Ex Parte Contacts/Fair Hearings. The Council shall refrain from receiving
information and evidence on any quasi-judicial matter while such matter
is pending before the City Council or any agency, board, or commission
thereof, except at the public hearing.
As an elected official, it is often impossible to avoid such contacts and
exposure to information. Therefore, if any member is exposed to
information or evidence about a pending matter outside of the public
hearing, through contacts by constituents, the applicant or through site
visits, the member shall disclose all such information and/or evidence
acquired from such contacts, which is not otherwise included in the
written or oral staff report, during the public hearing, and before the
public comments period is opened.
Matters are "pending" when an application has been filed. Information
and evidence gained by members via their attendance at noticed public
hearings before subordinate boards and commissions are not subject to
this rule.
4.8 No Attorney-Client Relationship
Councilmembers who consult the City Attorney, his or her staff, and/or
attorney(s) contracted to work on behalf of the City cannot enjoy or establish an
attorney-client relationship with said attorney(s) by consulting with or speaking to
same. Any attorney-client relationship established belongs to the City, acting
through the City Council, and as may be allowed in State law for purposes of
defending the City and/or the City Council in the course of litigation and/or
administrative procedures, etc.
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CHAPTER 5—COUNCIL ADVISORY BODIES
5.1 Commissions, and Committees Generally
5.1.1 The City of Menifee City Municipal Code establishes the following
commissions to advise the City Council, and adopted resolutions
establishing the following committees:
Planning Commission
Parks, Recreation , and Trails Commission
Senior Advisory Committee
Measure DD Oversight Committee
Menifee Citizens Advisory Committee
5.1.2 The City Municipal Code authorizes the City Council to establish
additional advisory boards and commissions to assist the Council in its
policy decisions. The City Council has the inherent power to create
committees.
5.1.3 City commissions, and committees (collectively “Council advisory bodies”)
do not set or establish City policy or administrative direction to City staff.
5.1.4 Appointments to commissions and committees are made by e a c h C i t y
C o u n c i l m e m b e r , i n h i s o r h e r s o l e d i s c r e t i o n .
Appointees to Council advisory bodies serve at the pleasure of the City
Council.
5.1.5 Commissions typically have broader policy and advisory responsibilities
than committees, which typically have much more focused advisory roles
to the Council, such as Senior Advisory and Measure DD Committees.
5.2 Commission and Committee Organization and Conduct
5.2.1 Annually, each commission and committee elects one of their members to
serve as the presiding officer or chair.
5.2.2 Commissions, and Committees established by the City Council shall hold
regular and special meetings as may be required. The conduct of
commission and committee meetings are governed by the same rules of
policy and procedure as the City Council.
5.2.3 Commissions, and Committees should comply with all applicable open
meeting and conflict-of-interest laws of the State.
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5.2.4 Upon appointment or reappointment, Council advisory body members
shall sign affirming they have read and understand this City of Menifee
City Council Code of Conduct.
5.3 Commission, and Committee Appointments
5.3.1 The City requires that members of City commissions be qualified electors
of the City (resident of City of Menifee and United States citizen).
Appointments will provide, as nearly as possible, a representative balance
of the broad population of the City. All appointees should bring the skill,
integrity, knowledge, interest, and commitment to evaluating issues in the
broad context of the public interest.
5.3.2 Unless appointed to an unexpired term of less than two years caused by
the resignation or other such vacancy, the term of office for each
commission and committee member is generally the same term as the
appointing City Councilmember, or Mayor.
Committee terms are two years and appointees are limited to two
consecutive terms prior to reappointment on a given committee (except
where specifically provided). An appointee must have a two year rest
period between term limits prior to reappointment.
5.3.3 The City Clerk provides application forms and maintains a composite
listing of all applications on file which have been received.
5.3.4 The City Clerk solicits applications for vacancies in accordance with the
procedures outlined in Government Code section 54974.
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5.3.5 Persons being considered for appointment (or reappointment) may be
interviewed at least once to qualify for appointment.
5.4 Commissions, and Committees—Vacancy of Office
5.4.1 If a member of a commission or committee is absent from three regular
meetings of such commission or committee consecutively or f r o m s i x
r e g u l a r m e e t i n g s within a calendar year, or is convicted of a
crime involving fraud, bribery, embezzlement, corruption, or any like crime
involving dishonesty or abuse of trust (collectively, “crimes of moral
turpitude”), or ceases to be a qualified elector and resident of the City, that
office shall become vacant upon the declaration of Council. The Council
may, for good cause, determine that a vacancy has been created.
5.4.2 Resignations may be submitted at any time to the City Council either
directly or through the commission or committee chair. Resignations are
effective upon submittal.
5.4.3 Upon notice of a vacancy, the Council Appointments shall initiate the
appointment procedure detailed in City Council, Commission, and
Committee Appointments, leading to a recommendation to the City
Council for a successor of such vacancy and the successor will be
appointed to serve only to the date of the unexpired term pursuant the
City Municipal Code.
5.5 Commissions, and Committees—Removal
5.5.1 A Commissioner, or Committee member is subject to removal by motion
of the City Council adopted by at least a simple majority of votes, or by the
Councilmember which made the appointment.
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CHAPTER 6—MEETINGS
6.1. Ralph M. Brown Act
All meetings of the City Council, standing Councilmember committees, and
Council advisory bodies are governed by the Ralph M. Brown Act (Government
Code 54950 et seq.). The City Council views the Brown Act as a minimum set of
standards and in several respects, the City's open meeting requirements exceed the
requirements of the Brown Act.
If any member of a City legislative body, or City staff, believe that action has been
taken on an item in contravention of the Brown Act, that person is privileged to
place the item on a future agenda for reconsideration and/or action.
6.2 Regular Meetings
6.2.1 City Council Policy No. 01 establishes the Rules of Decorum and Procedures
for the Conduct of City Council Meetings. The policy outlines the order of
agenda items, rules of procedure and decorum. The policy applies to the
Planning Commission and other City committees and commissions subject
to the Brown Act and shall apply to the City Council Chambers or any other
location where a meeting subject to these rules takes place.
6.3 Special and Emergency Meetings
6.3.1 Pursuant to the Ralph M. Brown Act, the Council may also hold special or
emergency meetings as deemed necessary.
6.4 Meeting Agendas
6.4.1 Preparation of Agendas
6.4.1.1 Council agendas and supporting information are prepared by
the City Manager and City Clerk.
6.4.1.2 For Council advisory bodies and Councilmember committees,
agendas and supporting information are prepared by the
supporting City department to the Council advisory body or
Councilmember committee as directed by the City Manager.
6.4.2 Placing Items on Agendas
6.4.2.1 Council Agendas
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6.4.2.1.1 The City Manager in conjunction with staff shall have
the primary responsibility for placing matters on the
City Council agenda in accord with the identified
City needs and scheduling.
6.4.2.1.2 The Mayor and Councilmembers may add an item to
the agenda in a public meeting as stated in …. All
regular City Council Agendas shall include an item
entitled “Future Agenda Requests from
Councilmembers.” See section 6.6.3, no. 15.
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6.5 Time of Adjournment
It is the policy of the City that all evening meetings of the Council, including Study
Sessions, be adjourned no later than 10:00 p.m., which time is referred to as the
normal time of adjournment. No new item of business shall be taken up by the
City Council after the normal time unless the Council has determined by majority
vote to set aside this policy. In the event it appears that the entire agenda cannot
be completed by the normal time of adjournment, the Council may take up and act
upon the more pressing agenda items. All agenda items not considered at the
meeting shall be on the agenda of the next regular, special, or adjourned regular
meeting unless the Council directs otherwise.
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6.66.5 Agenda Packets
6.6.16.5.1 Agenda packets are to be made available at City Hall, the City
Clerk's Office, the City's web site (www.cityofmenifee.us), and at the Council
meeting.
Regular Council meeting agendas, minutes, and staff reports are
generally available beginning the Friday evening before each Council
meeting.
NOTE: Also refer to City Council Policy No. 01, Rules of Decorum and
Procedures, which sets forth the rules of procedure for the conduct of
City business.
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CHAPTER 7—COUNCIL FINANCIAL MATTERS
7.1 Compensation
7.1.1 Pursuant to Section 2.04.040 of the City of Menifee City Municipal Code,
each Councilmember will receive a monthly salary.
7.1.2 The Mayor receives a monthly salary equal to the salary of a
Councilmember plus an additional $100 per month.
7.1.3 The City Council has no power to increase its salary by ordinance,
resolution, or motion.
7.2 Benefits
7.2.1 The California Government Code provides that Councilmembers may
receive health, retirement, and other benefits.
7.2.2 City-funded medical, dental, and life insurance plan benefits are provided.
7.3 City Council Budget and Expenses
7.3.1 City Council Policy No. 02, Reimbursement of Expenses for City Business
for Elected or Appointed Officials and City Employees, provides policy
guidance regarding Council expenditures for equipment, supplies and
communications; travel; local expenses; and expenses charged against the
City Council budget.
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