Staff Report – Ord Amending Title 2, Chptr 2.24, Section 2.24.030 PC Duties & Chptr 8.29 Marijuana of Title 8 H&S by Amending Section 8.29.05 Commercial Cannabis Activity.
CITY OF ARVIN
CITY COUNCIL
Agenda Report
Meeting Date: March 22, 2022
TO: City Council
FROM: Jeffrey Jones, Interim City Manager
SUBJECT: An Ordinance of the City Council of the City of Arvin Amending Title 2, Chapter 2.24, Section 2.24.030 Planning Commission Duties and Chapter 8.29 Marijuana of Title 8 Health and Safety by Amending Section 8.29.05 Commercial Cannabis Activity.
Recommendation:
Staff recommends the City Council consider adopting an Ordinance of the City Council of the City of Arvin amending amend Title 2 Administration and Personnel, Section 2.24.030 Duties of Planning Commission and Chapter 8.29 Marijuana by amending Section 8.29.05 Commercial Cannabis Activity to the Arvin Municipal Code establishing Commercial Cannabis Activity and open the hearing, allow for public testimony, close the hearing, waive second reading of the Ordinance, and approve the adoption of the Ordinance. Introduction of this Ordinance was held at the Arvin City Council Meeting of March 08, 2022.
Background:
The City Council adopted Ordinance No. 477 on June 19, 2018, adding Chapter 17.64 Commercial Cannabis Activity. With the adoption of and implementation the Commercial Cannabis Activity ordinance, the City has received and processed five (5) applications, only one commercial cannabis is operational. The City has, as of this report, three (3) pending applications for Commercial Cannabis Permits which requires the processing of a Conditional Use Permit, Site Development Plan, and Development Agreements, prior to the City Manager acting upon a Commercial Cannabis Business permit. The review and hearing process, based upon the current ordinances and process, is approximately 120 to 210 days or three (3) to seven (7) months.
The administration and implementation of the projects adds additional staff time and applicants time for the coordination and clearance of the conditions prior to an issuance of a Commercial Cannabis Permit being issued by the City Manager. The proposed amendments to Title 2 and Title 8 will streamline applications. The proposed modifications and amendments do not lessen the criteria and standards that were previously established.
Discussion:
The amendments will allow a reduction in time for processing of a Commercial Cannabis Permits and will reduce staff administration time, will reduce the current public hearing processes, will allow commercial cannabis businesses to obtain entitlements and clearances more efficiently (like
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Attachment: Staff Report Ordinance to Amend Titles 2 and 8 re Commercial Cannabis_032222 (Public Hearing - Second Reading & Adoption -
Staff Report – Ord Amending Title 2, Chptr 2.24, Section 2.24.030 PC Duties & Chptr 8.29 Marijuana of Title 8 H&S by Amending Section 8.29.05 Commercial Cannabis Activity.
the processing of more traditional commercial business development). The amendments will not eliminate the safeguards nor reduce operational standards required by State Law, current ordinances, or proposed ordinance amendments.
The proposed code amendments will provide a more efficient processes:
1. Amendment to Title 2 Administration and Personnel, Chapter 2.24 Planning Commission, Section 2.24.030 Duties of the Planning Commission by clarifying that the planning commission shall exercise all duties established by the laws of the state relating to city planning commissions, with the exception of those duties that have been expressly withheld from the planning commission in the City of Arvin's Municipal Code and such additional duties as may be prescribed by the city council.
2. Amendment to Title 8 Health and Safety this will place all Marijuana and Commercial Cannabis activity under one title of the municipal code which simplifies the administration by City Staff and by the public. Below highlights the new requirements and time savings and administration of and processing of Commercial Cannabis Business permits. a. Conditional Use Permits would no longer be required. Commercial Cannabis Activity will be permitted by right in the current zone districts, industrial and agricultural, which permit commercial cannabis activity. Other applicable zoning criteria will continue to apply, similar to existing residential, commercial, and industrial developments occurring in the city (time savings 45 to 120 days and eliminates the CEQA compliance review)
b. Section 8.29.05.09 requires compliance with State Law in that all employees obtain and retain an Employee Badge from their employer. The background check for employees is not required.
c. Section 8.29.05.06.c.5 authorizes the City Manager to issue a Conditional Commercial Cannabis Permit under certain circumstances and permits the Building Official to issue Temporary Occupancy Permits, in coordination with the Fire Agency, where no health and safety factors exist.
d. Section 8.29.05.110.b clarifies that the locational criteria separation of sensitive uses from Commercial Cannabis Activity is to be measured from the exterior of the building(s) not the property line, the applicant is to provide a locational map and certify compliance with the separation.
e. Section 8.29.05.110.d clarifies that the locational criteria separation of residential uses from Commercial Cannabis Activity is to be measured from the exterior of the building(s) not the property line, the applicant is to provide a locational map and certify compliance with the separation. The City Manager based upon review may permit a Commercial Cannabis Permit to be issued where specific findings are made. f. Section 8.29.05.180.b reduces the insurance requirements from $2,000,000.00 to $1,000,000 per occurrence.
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Attachment: Staff Report Ordinance to Amend Titles 2 and 8 re Commercial Cannabis_032222 (Public Hearing - Second Reading & Adoption -
Staff Report – Ord Amending Title 2, Chptr 2.24, Section 2.24.030 PC Duties & Chptr 8.29 Marijuana of Title 8 H&S by Amending Section 8.29.05 Commercial Cannabis Activity.
g. Section 8.29.05.200 Development Agreements, amends subsection d Modifications and Extensions by adding d.3 Minor Modifications approved by City Manager which includes Assumption Agreements.
h. Section 8.29.05.230 clarifies that the City Manager may approve a transfer of a Commercial Cannabis Permit subject to specific submittals and clearances. i. Section 8.29.05.240 General Operations clarifies the use of cargo containers, sea train containers, or other temporary structures.
j. Section 8.29.05.290.b allows, with City Manager approval, a cannabis permit to be issued in a space less than 2,000 square feet when in conjunction with another cannabis activity in a building 2,000 square feet or larger.
The code amendment(s) will continue to retain the definitions, enforcement, violations, insurance coverage limits, application review and approval procedures, and limits to all volatile and nonvolatile chemicals utilized in the testing and/or manufacturing process. In addition, all other commercial cannabis activity, including but not limited to cultivation, delivery, and dispensing, not specifically allowed by the Ordinance shall be prohibited. Personal cannabis activity, both recreational and medical, shall remain governed by the requirements of Chapter 8.29 of Title 8 of the Arvin Municipal Code.
Title 8, Chapter 8.29, Section 8.29.05 will continue to limit Commercial Cannabis Activity to the following:
• The definition of Commercial Cannabis in the City – includes both medical and recreational cannabis in accordance with state law.
• Type 2A: Indoor cultivation with all artificial light from 0 to 10,000 square feet of plant canopy
• Type 3A: Indoor cultivation with all artificial light from 10,001 to 22,000 square feet of plant canopy
• Type 2B: Indoor cultivation with all artificial light from 0 to 10,000 square feet of plant canopy
• Type 3B: Indoor cultivation with all artificial light from 10,001 to 22,000 square feet of plant canopy
• Type 4: Nurseries (the City anticipates limiting this use to a maximum 25,000 sf of plant growth area).
• Type 6: Manufacturing (Level 1) Non-Volatile Solvents • Type 7: Manufacturing (Level 2) Volatile Solvents
• Type 8: Testing
• Type 11: Distribution
• Type 12 Microbusiness
• Clarified prohibition of retail deliveries and dispensing, with exceptions. • Permit renewal requirements
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Attachment: Staff Report Ordinance to Amend Titles 2 and 8 re Commercial Cannabis_032222 (Public Hearing - Second Reading & Adoption -
Staff Report – Ord Amending Title 2, Chptr 2.24, Section 2.24.030 PC Duties & Chptr 8.29 Marijuana of Title 8 H&S by Amending Section 8.29.05 Commercial Cannabis Activity.
• Edibles
• Minimum age for employees and site access now 21
• Limitations regarding Testing Permits
• Greenhouse Cultivation
Fiscal Impact:
There were consultant staff costs involved in preparation of the Ordinances. A separate fee and cost recovery for the ordinance preparation is being processed and is anticipated to be full cost recovery for the preparation and adoption of the proposed ordinance amendments. The overall impact of the Ordinance is anticipated to have a positive financial impact by encouraging more manufacturing and cultivation activities. In addition, proposed Section 8.29.05.290(c) will require the forward payment of $25,000.00 per quarter for each Commercial Cannabis permit issued by the City Manager. This payment is to be credited against the future Commercial Cannabis Tax as established by Tile III, Chapter 3.19 Commercial Cannabis Tax. In addition, in as much as the City has limited the total Commercial Cannabis square footage and limited the Type 12 Microbusiness, the failure to implement and operate an approved Commercial Cannabis permit within two (2) years the forward payment will not be entitled to a refund.
Attachments:
1) An Ordinance of The City Council of The City of Arvin Amending Title 2, Chapter 2.24, Section 2.24.030 Planning Commission Duties and Chapter 8.29 Marijuana of Title 8 Health and Safety by Amending Section 8.29.05 Commercial Cannabis Activity.
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Attachment: Staff Report Ordinance to Amend Titles 2 and 8 re Commercial Cannabis_032222 (Public Hearing - Second Reading & Adoption -
ORDINANCE NO. _____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARVIN
AMENDING TITLE 2, CHAPTER 2.24, SECTION 2.24.030 PLANNING COMMISSION DUTIES AND CHAPTER 8.29 MARIJUANA OF TITLE 8 HEALTH AND SAFETY BY AMENDING SECTION 8.29.05
COMMERCIAL CANNABIS ACTIVITY.
WHEREAS, the City of Arvin ("the City") has the authority under Article XI, Section 7 of the California Constitution, to enact regulations for the public peace, morals, and welfare of the City; and
WHEREAS, in 1996, with the adoption of Proposition 215, the California voters approved the Compassionate Use Act (Health and Safety Code § 11362.5) to ensure that seriously ill Californians have the right to obtain and use cannabis for medical purposes where that medical use is deemed appropriate and has been recommended by a physician, without fear of criminal prosecution under limited, specified circumstances; and WHEREAS, in 2004, the State Legislature enacted SB 420, the Medical Marijuana Program Act (Health and Safety Code § 11362.7 et seq.), clarifying the scope of the Compassionate Use Act, providing additional statutory guidance regarding medical cannabis use, and allowing cities and counties to adopt supplemental rules and regulations; and WHEREAS, on October 9, 2015, the Governor signed the Medical Marijuana Regulation and Safety Act ("MMRSA"), comprised of California legislative bills AB 243, AB 266, and SB 643, creating a comprehensive state licensing system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medicinal marijuana, all subject to local control; and
WHEREAS, on June 27, 2016, the Governor signed SB 837, changing the title of MMRSA to the Medical Cannabis Regulation and Safety Act ("MCRSA"), changing the terminology therein from "medical marijuana" or "marijuana" to "medical cannabis" or "cannabis," and making other technical changes thereto. SB 837 also adopted regulations relating to the use and diversion of water in connection with the cultivation of cannabis; and WHEREAS, at the November 8, 2016, general election, the California voters approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act ("AUMA"), establishing a comprehensive regulatory and licensing scheme for commercial recreational (adultuse) cannabis operations, and legalizing limited personal adult-use cannabis use, possession, and cultivation; and
WHEREAS, on June 27, 2017, Governor Brown signed Senate Bill 94, the Medicinal and Adult Use Cannabis Regulation and Safety Act ("MAUCRSA"), which merged the regulatory regimes of MCRSA and AUMA; and
WHEREAS, MAUCRSA, at Business & Professions Code §26050, establishes 20
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
different types of state licenses, including permit types pertaining to cannabis cultivation, manufacturing, testing, retailing, and distribution, which medicinal and adult-use cannabis businesses must obtain, depending on the nature of the cannabis business, in order to operate legally in the State; and
WHEREAS, MAUCRSA, at Business & Professions Code §26200(a)(1), provides that local jurisdictions may adopt and enforce local ordinances to regulate or prohibit any or all types of medicinal and adult-use business operations licensed by the state under Business & Professions Code §26050, including, but not limited to, by imposing local zoning and land use requirements; and
WHEREAS, MAUCRSA, at Business & Professions Code §26055(d), provides that a State commercial cannabis license may not be issued to an applicant whose operations would violate the provisions of any local ordinance or regulation; and WHEREAS, MAUCRSA, at Business & Professions Code §26201, provides that any standards, requirements, and regulations regarding health and safety, environmental protection, testing, security, food safety, and worker protections established by the state for the various types of medicinal and adult-use commercial cannabis operations licensed by the state under Business & Professions Code §26050 shall be the minimum standards, and that a local jurisdiction may establish additional or more stringent standards, requirements, and regulations; and WHEREAS, pursuant to MAUCRSA, the California Bureau of Cannabis Control ("BCC"), Department of Food and Agriculture ("CDFA"), and Department of Public Health ("CDPH") adopted emergency regulations which establish additional State license types and specify the process and requirements for obtaining state licenses to engage in all types of commercial medicinal and adult-use cannabis activities in the State of California ("Regulations"); and
WHEREAS, the Regulations were approved by the State Office of Administrative Law on December 7, 2017; and
WHEREAS, the BCC is now accepting applications for temporary and annual state licenses for commercial cannabis retailers, distributors, microbusinesses, testing laboratories, and cannabis events; and
WHEREAS, the CDPH is now accepting applications for temporary and annual state licenses for commercial cannabis manufacturers; and
WHEREAS, the CDFA is now accepting applications for temporary and annual state licenses for commercial cannabis cultivators, nurseries and processors; and WHEREAS, several California cities have reported negative impacts of cannabis cultivation and related activities, including but not limited to offensive odors, criminal activity, (such as trespassing, theft, violent robberies and robbery attempts, and the illegal sale and distribution of cannabis), and public health and safety concerns (such as fire hazards and problems associated with mold, fungus, and pests); and
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
WHEREAS, cannabis plants, as they begin to flower and for a period of two months or more, produce a strong odor, offensive to many people, and detectable far beyond property boundaries if grown outdoors or if grown indoors without proper ventilation, odor control, and other regulations; and
WHEREAS, due to the value of cannabis plants and their strong smell (which alerts others to their locations), cannabis cultivation has been linked to break-ins, robbery, armed robbery, theft and attendant violence and injury, creating an increased risk to public safety; and WHEREAS, unregulated cannabis cultivation can be harmful to the welfare of the surrounding community and its residents and can constitute a public nuisance, in that cannabis cultivation has been shown to involve avoidance of environmental laws and regulations, and has resulted in the pollution of waters and navigable waterways in the State of California; and WHEREAS, unregulated indoor cultivation of cannabis has potential adverse effects on the structural integrity of the buildings in which cannabis is cultivated, and the use of high wattage grow lights and excessive use of electricity in such buildings increases the risk of fire, which presents a risk of property damage to the building and neighboring buildings, and endangers the building's occupants and nearby residents; and
WHEREAS, unregulated indoor cultivation of cannabis can also be harmful to the public health, safety and welfare in that electrical modifications risk fires, poor irrigation can cause mold, overloaded circuits can leave entire neighborhoods in the dark, plant chemicals can cause illness, improper carbon dioxide mixed with insufficient ventilation can cause injury or death, and structural changes put first responders in danger if they rush into the unknown; and WHEREAS, the Attorney General's August 2008 Guidelines for the Security and NonDiversion of Marijuana Grown for Medical Use recognize that the cultivation or other concentration of cannabis in any location or premises without adequate security increases the risk that nearby homes or businesses may be negatively impacted by nuisance activity such as loitering and/or crime; and
WHEREAS, there are numerous well publicized studies and reports, as well as numerous documented incidents in Kern County and throughout the State, which show that unregulated cannabis activities have a significant adverse effect on the community; and WHEREAS, in the absence of a formal regulatory framework, the adverse impacts frequently associated with commercial cannabis activities will occur, resulting in a potentially significant negative impact upon the environment and upon public health, safety, and welfare of the community; and
WHEREAS, outdoor cannabis cultivation and unregulated indoor cannabis cultivation are likely to result in these negative effects on the public health, safety, and welfare in the City, as reflected by the experiences of other cities; and
WHEREAS, the City has a compelling interest in protecting the public health, safety, and welfare of its citizens, residents, visitors and businesses, and in preserving the peace and quiet of the neighborhoods within the City by regulating commercial cannabis activities; and
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
WHEREAS, based on the foregoing and pursuant to the above-described express statutory authority and its police power, the City desires to explicitly prohibit certain cannabis activities, including storefront sales and outdoor cultivation (for both medicinal and adult-use), and to enact reasonable regulations for other commercial cannabis activities in order to protect and promote public health, safety and welfare; and
WHEREAS, under U.S. Supreme Court precedent, government agencies generally may conduct regulatory inspections of "closely regulated" businesses without reasonable suspicion that the business subject to inspection has violated a statute or regulation, provided that the governmental agency conducting the inspection has "special needs," beyond its ordinary interest in enforcement of criminal statutes, to conduct inspections, the regulations in the particular area could not be enforced if public officials could conduct inspections only when they have a reasonable suspicion that a violation has occurred, the businesses subjected to inspection are engaged in a particular category of activity that reduces the reasonable expectation of privacy of those engaged in such activities in relation to the inspections at issue, and the discretion of inspecting officials is reasonably constrained by the authorizing statue (People v. Maikhio, 51 Ca1.4th 1074, 1091-92 (2011)); and
WHEREAS, commercial cannabis businesses cultivate, manufacture, dispense, distribute, test, or engage in other business activities relating to a historically criminalized substance which is often used for medical purposes, which can cause health and safety issues for those consuming it, which can be unsafe if improperly cultivated, manufactured or handled, and which is subject to illegal diversion, and as a result, state and local government agencies, including the City, have a strong governmental interest in regulating such businesses; and WHEREAS, businesses engaged in commercial cannabis activities constitute "closely regulated" businesses which have a reduced reasonable expectation of privacy due to the strong governmental interest in regulating such activities to protect against the potential risks to public health and safety relating to such activities, and therefore the probable cause and warrant requirements ordinarily required for law enforcement searches are relaxed as to such businesses; and
WHEREAS, the City has a special need, beyond its ordinary interest in enforcement of criminal statutes, to conduct regulatory inspections of commercial cannabis businesses due to the unique threats to public health, safety and welfare posed by such businesses, including but not limited to risks of fire and explosion resulting from improper cultivation, manufacturing or other processes used by such businesses, and the increased risk of crime, in the absence of proper security measures, resulting from the presence of valuable property on the premises of such businesses; and
WHEREAS, the regulations imposed by this Ordinance could not be effectively enforced if the City's officials could conduct inspections only when they have a reasonable suspicion that a violation has occurred, because often the threats to public health, safety and welfare arising from a commercial cannabis business will not be apparent from the outside, and any prior notice requirements associated with such inspections would allow such businesses to temporarily conceal or remove the conditions that give rise to such threats for purposes of passing the inspection, only to allow such conditions to return thereafter; and
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
WHEREAS, based on the foregoing, the City Council intends to authorize reasonable Suspicion less inspections of commercial cannabis business in the City by local officials as necessary to enforce this Ordinance and thereby safeguard public health, safety and welfare, and to impose reasonable constraints on the discretion of such inspecting officials by limiting their inspection authority to confirming compliance with this Ordinance and the applicable laws and regulations referenced herein; and
WHEREAS, in 2010, the City adopted Sections 17.02.435 and 17.07.01 of Title 17 of the Arvin Municipal Code pertaining to Medical Marijuana Dispensaries, placing a complete ban on dispensaries in the City based upon various health, safety and welfare and land use findings relating to marijuana cultivation, dispensing, and consumption; and WHEREAS, on November 21, 2017, the City Council adopted Ordinance No. 443, which added Chapter 8.29 "Commercial Cannabis Activity" to Title 17 of the Arvin Municipal Code, and which repealed Sections 17.02.435 and 17.07.01 of Title 17 of the Arvin Municipal Code pertaining to Medical Marijuana Dispensaries; and
WHEREAS, the Arvin Municipal Code already contained a Chapter 8.29 ("Sign Regulations [Private Property]") prior to adoption of Ordinance No. 443, and said chapter remains in full force and effect;
WHEREAS, the City Council now sees fit to renumber and relocate the duplicative Chapter 8.29 "Commercial Cannabis Activity" to Chapter 8.29 of the Arvin Municipal Code, and to amend and supplement the regulations imposed by said chapter on commercial cannabis businesses and applicants in the City; and
WHEREAS, nothing in this Ordinance shall be construed to: (1) allow any person to engage in conduct that endangers others or causes a public nuisance; or (2) allow any activity relating to the cultivation, manufacturing, testing, distribution, or consumption of cannabis which is illegal under state or federal law; and
WHEREAS, all legal prerequisites to the adoption of this ordinance have occurred.
NOW THEREFORE, the City Council of the City of Arvin does hereby ordain as follows:
SECTION 1. The above recitals are true and correct and are incorporated herein.
SECTION 2. The City Council finds and determines that the Ordinance is exempt from the California Environmental Quality Act ("CEQA") because it can be seen with certainty that there is no possibility that it will have a significant effect on the environment, as this Ordinance merely amends the Arvin Municipal Code to establish new and amended procedures and requirements for the permitting and regulation of certain commercial cannabis activities, the environmental impacts of which will be assessed on a use-specific basis. (CEQA Guidelines § 15061(b)(3)). Furthermore, the City Council finds and determines the Ordinance would also be subject to Categorical Exemptions under CEQA Guidelines sections 15307 and 15308, as it consists of regulations and restrictions on activities to assure the maintenance, restoration, or
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
enhancement of natural resources and the environment by prohibiting environmentally destructive components of unregulated cannabis cultivation. (CEQA Guidelines §§ 15307 and 15308.) Finally, none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines Section 15300.2 apply to this Ordinance. Therefore, the City Council also adopts Categorical Exemptions for this Ordinance, pursuant to CEQA Guidelines sections 15307 and 15308.
SECTION 3. Chapter 8.29 Marijuana of the Arvin Municipal Code, entitled "Marijuana” Section 8.29.05 Commercial Cannabis Activity," as added to the Arvin Municipal Code by City Ordinance No. XXX, and is amended to read in its entirety as follows:
Chapter 8.29 MARIJUANA
SECTION 8.29.05 COMMERCIAL CANNABIS ACTIVITY
Section 8.29.05.01 - Purpose and Intent.
(a) It is the purpose and intent of this Chapter to adopt local prohibitions and regulations applicable to commercial cannabis activity as may be permitted by the Medicinal and AdultUse Cannabis Regulation and Safety Act and other applicable State law, as amended, pertaining to regulation of commercial cannabis and the use of land, in order to protect the City's neighborhoods, residents, and businesses from negative impacts. It is a further purpose and intent of this Chapter to regulate the cultivation, manufacturing and testing of cannabis and cannabis products in a manner which is responsible and which protects the health, safety, and welfare of the residents of the City, and to enforce rules and regulations consistent with applicable state law including, but not limited to, the Medicinal and Adult-Use Cannabis Regulation and Safety Act, the Adult Use of Marijuana Act, the Compassionate Use Act of 1996, and the Medical Marijuana Program Act. In furtherance of these objectives, this Chapter imposes an annual regulatory permit requirement, a conditional use permit requirement, employee work permit requirements, and operating requirements applicable to persons who seek to own, operate, or engage in commercial cannabis businesses within the City as authorized under this Chapter or the Arvin Municipal Code. Nothing in this Chapter is intended to authorize any activity which is in violation of state or federal law. The provisions of this Chapter are in addition to the business license requirements applicable to business conducted in the City, and to all other applicable requirements of the Arvin Municipal Code. (b) Pursuant to Section 7 of Article XI of the California Constitution, the City is authorized to adopt ordinances that establish standards, requirements, and regulations for local licenses and permits for commercial cannabis activity. Any standards, requirements, and regulations regarding commercial cannabis activity, including health and safety, testing, laboratory operations and safety, security, and worker protections established by the State, or any of its agencies, departments, or divisions, shall be the minimum standards applicable in the City, and the provisions of this ordinance shall apply in addition thereto.
Section 8.29.05.02 - Definitions.
When used in this Chapter, the following terms shall have the meanings ascribed to them in this Section. Any reference to California statutes includes any regulations promulgated thereunder and
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
is deemed to include any successor or amended version of the referenced statute or regulatory provision.
(a) "Building Official" means the Building Official for the City or his/her designee. (b) "Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. (c) (c) "Cannabis" also means the separated resin, whether crude or purified, obtained from marijuana. "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. "Cannabis" also does not include the weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product. For the purpose of this Chapter, "Cannabis" does not mean industrial hemp as that term is defined by Section 11018.5 of the California Health and Safety Code.
(c) "Cannabis concentrate" means manufactured cannabis that has undergone a process to concentrate one or more active cannabinoids, thereby increasing the product's potency. Resin from granular trichomes from a cannabis plant is a concentrate for purposes of this Chapter.
A cannabis concentrate is not considered food, as defined by Section 109935 of the Health & Safety Code, or a drug, as defined by Section 109925 of the Health & Safety Code. (d) "Cannabis products" means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing cannabis or concentrated cannabis and other ingredients.
(e) "Chief of Police" means the Chief of Police for the Arvin Police Department or his/her designee.
(f) "City Manager" means the City Manager for the City or his/her designee. (g) "Commercial cannabis activity" or "commercial cannabis business" includes cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale (including retail and wholesale) of cannabis or cannabis products conducted or engaged in by any person, except cultivation and possession of cannabis for personal use as governed by Arvin Municipal Code Chapter 8.29, Section
8.29.05 and/or as preempted by State law.
(h) "Commercial cannabis permit" means a permit issued by the City pursuant to this Chapter to a commercial cannabis business.
(i) "Cultivation" means any activity involving the propagation, planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(j) "Cultivation site" means a facility where cannabis is propagated, planted, grown, harvested, dried, cured, graded, or trimmed, or where all or any combination of those activities occur. (k) "Day care center" means, as the term is understood in Business & Professions Code Section 26001(o), as may be amended, any child day care facility other than a family day care home, and includes infant centers, preschools, extended day care facilities, and school age childcare centers.
(l) “Delivery" means the commercial transfer of cannabis or cannabis products to a customer at the customer's home or other location remote from the premises of the commercial cannabis business making the delivery and includes the use by a retailer of any technology platform. "Delivery" does not mean or include storefront sales.
(m) "Distribution" means the procurement, sale and transport of cannabis and cannabis products between licensees.
(n) "Distributor" means a licensee engaged in distribution. (o) "Edible cannabis product" means a cannabis product that is intended to be used, in whole or in part, for human consumption. An edible cannabis product is not considered food as defined by Section 109935 of the California Health and Safety Code or a drug as defined by Section 109925 of the California Health and Safety Code.
(p) Employee – See (ee) Responsible Person.
(q) "Fire Chief" means the Fire Chief for the City as designated by the Kern County Fire Department, or his or her designee.
(r) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996. (s) "Labeling" means any label or other written, printed, or graphic matter upon a cannabis product, upon its container or wrapper, or that accompanies any cannabis product. (t) "License" or "State License" means a license issued by the State of California, or one of its departments or divisions, pursuant to Division 10 of the California Business & Professions Code. "Licensee" means a person holding a State License. (u) "Live plants" means living cannabis flowers and plants, including seeds, sprouts, immature plants (including unrooted clones), and vegetative stage plants. (v) "Manufacture" means to compound, blend, extract, infuse, or otherwise make or prepare a cannabis product.
(w) "Manufacturer" means a licensee that conducts the production, preparation, propagation, or compounding of cannabis or cannabis products either directly or indirectly or by extraction methods, or independently by means of chemical synthesis at a fixed location that packages
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
or repackages cannabis or cannabis products or labels or relabels its container; "Manufacturer" includes the activity of manufacturing.
(x) "Manufacturer 1" means a licensee that manufactures cannabis products using nonvolatile solvents, or no solvents.
(y) "Manufacturer 2" means a licensee that manufactures cannabis products using volatile solvents.
(z) "Nursery" means a licensee that produces only cannabis clones, immature cannabis plants, seeds, and other agricultural products used specifically for the planting, propagation, and cultivation of cannabis.
(aa) "Owner" means any person who has an ownership interest in a commercial cannabis business. (bb) "Package" means any container or receptacle used for holding cannabis or cannabis products. (cc) "Person" means an individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, nonprofit organization, or any other group or combination acting as a unit and includes the plural as well as the singular.
(dd) "Premises" means the designated structure or structures and the surrounding land that is owned, leased or otherwise held under the control of a commercial cannabis permit applicant or permittee where commercial cannabis activity will be or is conducted. This definition does not alter the meaning of the term "Premises" as utilized by the State of California for commercial cannabis licensing.
(ee) "Responsible person" means any person who is responsible for, or who will oversee or participate in, the direction, control, management, or supervision of a commercial cannabis business.
(ff) "Retailer" means a person who engages in the retail sale of cannabis or cannabis products to customers.
(gg) "Sell," "sale" and "to sell" include any transaction whereby, for any consideration, title to cannabis or cannabis products is transferred from one person to another, and includes the delivery of cannabis or cannabis products pursuant to an order placed for the purchase of the same and soliciting and receiving an order for the same, but does not include the return of cannabis or cannabis products by a licensee to the licensee from whom the cannabis or cannabis product was purchased.
(hh) "School" means, as the term is understood in Business & Professions Code Section 26054(b), as may be amended, a place of instruction in kindergarten or any grades 1 through 12.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(ii) "State" means the State of California and all of its departments, divisions and agencies, including but not limited to the Bureau of Cannabis Control, the Department of Public Health, and the Department of Food and Agriculture.
(jj) "Stacking" means cultivating cannabis plants on platforms or tables and stacking them in multiple layers on top of each other.
(kk) "Storefront sales" means the retail sale of cannabis or cannabis products directly to customers from a storefront, dispensary, or other permanent building or structure, or in any manner that does not constitute delivery. "Storefront sales" does not include delivery (ll) "Testing Laboratory" means a laboratory, facility or entity that offers or performs tests of cannabis or cannabis products and that is both: (1) accredited by an accrediting body that is independent from all other persons involved in commercial cannabis activity; and (2) a State licensee.
(mm) "Topical cannabis" means a cannabis product intended for external application. A topical cannabis product is not considered a drug as defined by Section 109925 of the California Health and Safety Code.
(nn) “Volatile solvent" means a solvent that is or produces a flammable gas or vapor that, when present in the air in sufficient quantities, will create explosive or ignitable mixtures. (oo) "Youth center" means, as the term is understood in Business & Professions Code Section 26001(av), as may be amended, any public or private facility that is primarily used to host recreational or social activities for minors, including but not limited to private youth membership organizations or clubs, social service teenage club facilities, video arcades, or similar amusement park facilities.
Section 8.29.05.03 - Applicability to Personal Cannabis Activity.
This Chapter applies only to commercial cannabis activities. Except as otherwise provided by this Chapter, cultivation of cannabis for personal use is governed by Section 8.29.03 of the Arvin Municipal Code, as may be amended from time to time, and consumption of cannabis is governed by Section 8.29.06 of the Arvin Municipal Code, as may be amended from time to time. To the extent any provision of Chapter 8.29 of the Arvin Municipal Code conflicts with this Chapter, this Chapter shall govern.
Section 8.29.05.04 - Permitted Types of Commercial Cannabis Businesses (a) Commercial cannabis operations within the City, which comprise the activities of indoor cultivation, mixed-light cultivation, nursery cultivation, retailer (delivery only), manufacturer, testing laboratory, distributor, and microbusiness (other than storefront sales) are allowed subject to issuance and maintenance of the permits and entitlements set forth in Section 8.29.05.06(a), continuing compliance with this Chapter and all other applicable City and State laws and regulations, and issuance and maintenance of a valid and current State license of a classification listed below, as provided for in Business & Professions Code Section 26050 and applicable State regulations:
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1. Type lA = Cultivation; Specialty Indoor; Small.
2. Type 1B = Cultivation; Specialty Mixed-Light; Small.
3. Type 2A = Cultivation; Indoor; Small.
4. Type 2B = Cultivation; Mixed-Light; Small.
5. Type 3A = Cultivation; Indoor; Medium.
6. Type 3B = Cultivation; Mixed-Light; Medium.
7. Type 4 = Cultivation; Nursery.
8. Upon authorization by the State of California, Type 5A = Cultivation; Indoor; Large.
9. Upon authorization by the State of California, Type 5B = Cultivation; Mixed-Light; Large.
10. Type 6 = Manufacturer 1.
11. Type 7 = Manufacturer 2.
12. Type N = Manufacturer (i.e. no extractions, pursuant to 17 CCR § 40118, as may be amended).
13. Type P = Manufacturer (i.e. packaging and labeling only, pursuant to 17 CCR § 40118, as may be amended).
14. Type 8 = Testing Laboratory.
15. As authorized by California Code of Regulations, Type 9 = Non-Storefront Retailer (i.e. retail sales by delivery only, pursuant to 16 CCR § 5414, as may be amended).
16. Type 10 = Retailer (subject to Section 8.29.050, i.e. delivery only).
17. Type 11 = Distributor.
18. Type 12 = Microbusiness (subject to Sections 8.29.05.04(c) and 8.29.050).
19. Type 13 = Distributor (i.e. transport only, pursuant to 16 CCR § 5315, as may be amended).
20. Cultivation License Types for Indoor or Mixed-Light pursuant to 3 CCR § 8201, as may be amended).
21. Commercial Cannabis types that may be established by the State of California and is determined by the City Manager to be in substantial compliance with this Chapter.
(b) Any commercial cannabis activity not expressly authorized by this Chapter is prohibited. (c) The number of commercial cannabis permits authorizing the operation of a microbusiness requiring a Type-12 State License that may be active or valid in the City at any given time shall not exceed thirty-five (35) permits, or a lower number as may be established by the City Council.
Section 8.29.050.05 - Prohibited Types of Commercial Cannabis Businesses (a) Commercial cannabis businesses within the City which involve the activities of outdoor cultivation and storefront sales are prohibited in the City. This prohibition includes, but is not limited to, commercial cannabis activities licensed by the State license classifications listed below, as provided for in Business & Professions Section 26050 and applicable State regulations:
1. Type 1= Cultivation; Specialty Outdoor; Small.
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2. Type 1C = Cultivation; Specialty Cottage; Small.
3. Type 2 = Cultivation; Outdoor; Small.
4. Type 3= Cultivation; Outdoor; Medium.
5. Type 5 = Cultivation; Outdoor; Large.
6. Type 10 and 12 (Storefront sales prohibited.)
(b) Except as otherwise expressly provided in this Chapter, the prohibition of subsection (a) includes any similar commercial cannabis activities authorized under new or revised State licenses, or any other State authorization, for any type, category, or classification of commercial cannabis activities which involve the above-referenced or similar activities or operations.
(c) Notwithstanding any provision of this Chapter or the Arvin Municipal Code, storefront sales are prohibited in the City. No commercial cannabis permit issued to any person, including but not limited to a person holding a Type 10 "Retailer" or Type 12 "Microbusiness" State license, shall include any authorization to engage in storefront sales.
This prohibition applies to both adult-use and medicinal cannabis and cannabis products.
As such, no medicinal cannabis cooperative, collective, dispensary, operator, establishment, or provider, within the meaning of Health & Safety Code Section 11362.768, shall be permitted to engage in storefront sales. The term "storefront sales" shall include making available, tendering, offering, bartering, gifting, releasing, delivering, providing or exchanging any cannabis or cannabis products. However, this subsection does not prohibit the issuance of commercial cannabis permits authorizing non-storefront sales, by delivery only, of cannabis or cannabis products in the City. (d) Consistent with Business & Professions Code Section 26080, nothing in this Chapter shall be interpreted to prohibit the use of the public roads of the City by a State licensee in the course of making cannabis deliveries to and from areas outside of the City.
Section 8.29.05.06 - Required Licenses and Permits.
(a) It shall be unlawful to own, establish, operate, use, or allow the establishment or activity of a commercial cannabis business, or to participate in a commercial cannabis business as an employee, contractor, agent, volunteer, or in any manner or capacity, other than as provided in this Chapter and pursuant to the following:
1. A valid and current commercial cannabis permit(s) issued by the City pursuant to this Chapter, and
2. The equivalent State license(s) for such commercial cannabis business issued pursuant Division 10 of the Business & Professions Code, as may be amended, and
3. Employee Badge pursuant to Section 8.29.05.09; and
4. A valid City business license.
(b) The City Manager is hereby authorized to issue commercial cannabis permits on behalf of the City. The City Manager, or designee, in his or her sole discretion, may issue a commercial cannabis permit only upon confirming that the applicant to whom the permit is to be issued has satisfied all of the requirements of this Chapter and the other applicable provisions of the Arvin Municipal Code, as may be amended from time to time, any
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regulations promulgated pursuant to this Chapter, and any law or regulation enacted by the State of California or any department of the State governing commercial cannabis activities.
(c) Commercial cannabis permits shall be governed by the following requirements and limitations:
1. Commercial cannabis permits may only permit the types of cannabis activity expressly authorized by this Chapter.
2. No commercial cannabis permit shall authorize public access to any commercial cannabis business. Only persons involved in the bona fide business activities of a commercial cannabis business shall be authorized to access the premises of a commercial cannabis business.
3. Commercial cannabis businesses shall not employ or grant access to any individual who is under twenty-one (21) years of age.
4. Each commercial cannabis permit issued pursuant to this Chapter shall expire twelve (12) months after the date of its issuance and must thereupon be renewed.
Continued operation of a commercial cannabis business after expiration of a commercial cannabis permit shall be unlawful and a violation of this Chapter.
5. Prior to issuance of any commercial cannabis permit, each proposed commercial cannabis business shall be subject to the mandatory inspections provided by Section
8.29.05.15 and shall obtain all required permits or approvals which are otherwise required for the premises by applicable law, including, but not limited to, building permits, California Fire Code approvals, and planning-level permit(s) required by Title 17 Zoning of the Arvin Municipal Code. City Manager may issue a Conditional Commercial Cannabis Permit where the business is actively implementing conditions, obtaining clearances and licenses from local agencies and the state of California. Temporary Certificate of Occupancy may be issued by the Building Official where such occupancy is near completion of required improvements and where the Building Official and Fire Agency finds that no health and safety factors exists.
6. Consistent with Business and Professions Code Section 26053, a commercial cannabis business conducting multiple commercial cannabis activities shall obtain a commercial cannabis permit authorizing each type and location of commercial cannabis activity prior to engaging in that activity. A commercial cannabis business licensed by the State to conduct multiple commercial cannabis activities shall not receive a commercial cannabis permit authorizing any commercial cannabis activity within the City that is not expressly authorized by this Chapter. An applicant may be issued a commercial cannabis permit authorizing multiple different types of commercial cannabis activities as defined by applicable State license classifications, consistent with the requirements of Business and Professions Code Section 26053 and/or a Type 12 "Microbusiness" State license.
7. Revocation, termination, denial, non-issuance or suspension of a State license shall immediately and automatically terminate the commercial cannabis permit, and all commercial cannabis activity shall immediately cease. Upon reinstatement or receipt of a new State license, the commercial cannabis activity may file for a new permit from the City. While a new application for a commercial cannabis permit is
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pending, the applicant shall not engage in any commercial cannabis activity.
Violations of this Section shall be grounds for denial of an application for a commercial cannabis permit and for the enforcement, penalties and cost recovery prescribed within Section 8.29.05.170 and any other applicable provisions of the Arvin Municipal Code.
8. The issuance of a commercial cannabis permit shall constitute a revocable privilege and shall not create or establish any vested rights for the development or use of any property.
(d) Renewals of commercial cannabis permits shall be governed by the following requirements and limitations:
1. Applications for renewal of commercial cannabis permits shall be filed with the City Manager at least sixty (60) calendar days prior to the expiration date of the permit and shall be subject to all requirements applicable to an application for initial issuance of a commercial cannabis permit.
2. An application for renewal of a commercial cannabis permit shall be denied if any of the following exists:
i. The application is filed less than sixty (60) calendar days before expiration of the commercial cannabis permit. Notwithstanding the foregoing, the City Manager, in his discretion, may accept an application filed between thirty (30) and sixty (60) days before expiration based upon a showing of good cause by the applicant for the late filing.
ii. The commercial cannabis permit, or any of the other entitlements required for the commercial cannabis to operate in compliance with this Chapter, is suspended or revoked at the time the application for renewal is submitted or is suspended or revoked while the application for renewal is pending. iii. The commercial cannabis business or activity has not been in regular and continuous operation during the four (4) months prior to the submission of the application for renewal.
iv. The commercial cannabis business is in noncompliance with any provision of this Chapter, any regulation promulgated pursuant hereto, any other provision of the Arvin Municipal Code applicable to the commercial cannabis business, or any condition of approval of the commercial cannabis permit or any other entitlement issued by the City to the commercial cannabis business.
v. The applicant for renewal of the commercial cannabis permit has failed to obtain or renew any required State license or is in violation of any applicable provision of State law or any applicable State regulation. vi. The applicant for renewal has failed to pay in full all fees, administrative fines, penalties and/or charges imposed by the City relating to the commercial cannabis business, unless assessment of the fees, administrative fines, penalties and/or charges are being appealed.
3. If a renewal application is denied, the applicant may file an appeal. The appeal must be in writing, must identify the grounds for reversing the denial, and must be submitted to the City Clerk within ten (10) days from the date of the denial. The appeal shall be conducted pursuant to Section 8.29.05.190(j). In the alternative, the
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applicant may file a wholly new application for a commercial cannabis permit pursuant to this Chapter. Upon expiration of the commercial cannabis permit and regardless of a pending appeal or new application for a commercial cannabis permit, all of the applicant's commercial cannabis activity shall immediately cease.
Violations of this Section shall subject the violator to denial of the appeal or new application for a commercial cannabis permit and/or the enforcement, penalties and cost recovery mechanisms prescribed within this Chapter and/or the Arvin Municipal Code.
4. Any unpaid fees, administrative fines, penalties and/or costs imposed by the City relating to the commercial cannabis business shall be added to the fee for renewal of the commercial cannabis permit, unless assessment of the fees, administrative fines, penalties and/or costs are being appealed.
5. A commercial cannabis permit shall not be renewed until the City receives payment in full of the fee for the commercial cannabis permit renewal application. Said fee shall be governed by and subject to the provisions of Section 8.29.05.190(b), unless otherwise provided by resolution of the City Council.
(e) Failure of a commercial cannabis business to obtain and maintain a valid City business license, and to remain in compliance with all applicable provisions and requirements of that license, shall constitute grounds for denial of an application for renewal of a commercial cannabis permit, suspension or revocation of a current commercial cannabis permit.
Section 8.29.05.07 - Existing Commercial Cannabis Businesses.
Commercial cannabis businesses in existence in the City as of the date of adoption of this Chapter may continue to operate under the approved and issued Commercial Cannabis Permit and associated entitlements, Conditional Use Permit, Site Development Plan, Development Agreement, or may, upon its annual renewal, utilize this Chapter for permitting and compliance with the requirements of this Chapter. An unpermitted commercial cannabis business that can demonstrate to the City Manager's satisfaction that it is diligently applying to obtain the required permits and licenses, and that it is in good standing and otherwise in compliance with all applicable local and state laws and regulations, may, at the discretion of the City Manager, be temporarily permitted to continue its operations while its applications for the required permits and licenses are pending.
Section 8.29.05.08 - Security Measures.
(a) A permitted commercial cannabis business, regardless of building type utilized, shall implement sufficient security measures to both deter and prevent unauthorized entrance into areas containing cannabis or cannabis products and theft of cannabis or cannabis products at the premises. These security measures shall include, but shall not be limited to, all of the following, in addition to any other security measures deemed necessary by the City Manager or required pursuant to any regulations as may be promulgated by the City Manager in furtherance of the purposes of this Chapter:
1. Preventing persons from remaining on the premises of the commercial cannabis business if they are not engaging in bona fide business activity of the commercial cannabis business.
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2. Establishing limited access areas accessible only to authorized commercial cannabis business personnel.
3. Ensuring that live growing plants which are being cultivated are kept in a secured cultivation site, and that all cannabis and cannabis products are stored in a secured and locked room, safe, or vault at all times. All cannabis and cannabis products, including live plants which are being cultivated, shall be kept in a manner as to prevent diversion, theft, and loss.
4. Installing twenty-four (24) hour security surveillance cameras with night vision capability and of at least 1080p HD-quality to monitor all entrances and exits to and from the premises and to monitor all interior spaces, excluding all restroom and changing room facilities, within the commercial cannabis business. The security surveillance system shall be compatible with software and hardware utilized by the Arvin Police Department and as approved by the Chief of Police or designee. The security surveillance system shall be capable of providing the Arvin Police Department with remote real-time/live access to the video footage during emergency situations, including but not limited to armed robbery, active shooter, hostage, and exposure to hazardous or volatile substances. Video recordings shall be maintained for a minimum of forty-five (45) days. Upon request by the Chief of Police, video recordings will be provided to the Arvin Police Department within twenty-four (24) hours. If the commercial cannabis business refuses to provide the Chief of Police access to the real-time/live video feed or the requested video recordings, the City Attorney shall be authorized to seek reimbursement of all costs, including but not limited to court costs, attorney's fees, filing fees, administrative time and fees and employee time, incurred by the City while seeking a warrant and/or judicial intervention granting the requested access. The requirements of this Section shall be in addition to any other applicable provision of the Arvin Municipal Code.
5. Sensors shall be installed to detect entry and exit from all secure areas.
6. Panic buttons shall be installed in all commercial cannabis businesses.
7. A professionally installed, maintained, and monitored alarm system shall be maintained in operable condition at all times.
8. Any bars installed on the windows or the doors of the commercial cannabis business shall be installed only on the interior of the building and shall be installed in compliance with all applicable requirements of the Arvin Municipal Code, California Building Code and California Fire Code.
9. Each commercial cannabis business shall have the capability to remain secure and operational during a power outage and shall ensure that all access doors are not solely controlled by an electronic access panel to ensure that locks are not released during a power outage.
10. All security personnel to be hired or used by each commercial cannabis business shall be licensed by and in good standing with the State Bureau of Security and Investigative Services and shall obtain an Employee Badges pursuant to Section
8.29.05.09. At least one such security guard shall be on the premises of each commercial cannabis business during all operating hours. The City Manager may increase the number of security guards required to be on the premises of any commercial cannabis business as a condition of approval of any commercial
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cannabis permit application, if he or she deems such additional security guards necessary to adequately protect the premises based on the size or other characteristics of the commercial cannabis business or its premises.
11. Fencing shall be installed along the perimeter of the project site. Fencing location, design, and materials shall be approved by the City Manager or designee. Fencing shall be a minimum of 10’-0” with angled or electrified top. Materials shall be limited to wrought iron fencing, masonry, a combination of the two, or alternatives subject to approval by the City Manager or their designee. All fencing shall have angled wrought iron topping or must be electrified. Electronic entry gates for automobiles and pedestrian shall be designed as noted above and the City Manager or designee shall have final approval. Fencing must be in place to the satisfaction of the City Manager or their designee as well as the Building Department prior to being eligible for a certificate of occupancy or a temporary certificate of occupancy.
12. Any portion of the fencing that is electrified shall comply with all State, Federal and Local laws, including, but not limited to, California Civil Code section 835 and any amendments thereto.
13. Developer must submit a detailed fencing plan to the City Engineer or their designee for approval. Plans may be included within a larger Civil Design Plan required for overall site development approval. At a minimum, the plans must show the layout of all proposed exterior fences with locations of gates for pedestrians and vehicles. Plans must also include typical sections, typical elevations, and details regarding hardware, materials, color, textures, and any additional information requested by the City Engineer upon review of a fencing plan. The use of existing fences must also be shown on the plans, detailed appropriately, and shall be subject to approval on a case-by-case basis by the City Engineer. City Engineer review shall be independent of any necessary review by the Building Department which the Developer must submit plans to for a separate permit following City Engineer approval.
14. The use of razor wire, barbed wire, or similar materials is strictly prohibited. In cases of masonry walls, all public facing sides must be covered in an approved antigraffiti material or must have climbing vines attached to the walls which must be maintained over time to the satisfaction of the City Manager. In cases of wrought iron fences, the Developer may install an opaque cover to prevent the public from seeing into the site. In these cases, such a cover must also have an approved antigraffiti coating. Any graffiti must be immediately removed by the Developer within 72 hours when notified by the City Manager or their designee regardless of when the graffiti first appeared. Similarly, any damage to the perimeter fencing must be immediately repaired within 72 hours when notified by the City Manager or their designee regardless of when the damage first appeared.
15. Approved colors and textures for public facing portions of fences are as follows unless otherwise approved by the City Manager or their designee:
• Masonry: terra cotta; split faced
• Wrought iron and opaque coverings: black or green; opaque covering to be metallic or durable plastic capable of withstanding substantial winds and must be UV and rust resistant.
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(b) Each commercial cannabis business shall provide the City Manager with the identity and contact information for a liaison who shall be reasonably available to meet and discuss compliance with the requirements of the Arvin Municipal Code, state law and/or any other laws and regulations applicable to the commercial cannabis business. (c) As part of the application and permitting process, each commercial cannabis business shall provide the City Manager with a detailed transportation plan describing the procedures for safely and securely transporting cannabis, cannabis products and/or currency. (d) A commercial cannabis business shall notify the Chief of Police within twenty-four (24) hours after discovering any of the following:
1. Significant discrepancies identified in inventory. The level of significance may be determined by regulations promulgated by the City Manager.
2. Diversion, theft, loss or any criminal activity involving the commercial cannabis business, an employee or any agent of the commercial cannabis business.
3. The loss or unauthorized alteration of records referring or related to cannabis, cannabis products, employees or agents of the commercial cannabis business.
4. Any other breach of security.
Section 8.29.05.09 - Employee Badge Requirement.
Every employee or independent contractor working at or for a commercial cannabis business or involved in security, delivery or distribution, or other services for a commercial cannabis business shall obtain an employee badge pursuant to Title 4 Cal. Code Regulations Section 15043 or as may be amended. (§15043. Licensee Employee Badge Requirement. All agents, officers, or other persons acting for or employed by a licensee conducting retail sales or participating in a temporary cannabis event shall display a laminated or plastic-coated identification badge always issued by the licensee while engaging in commercial cannabis activity. The identification badge shall, at a minimum, include the licensee’s “doing business as” name and license number, the employee’s first name, an employee number exclusively assigned to that employee for identification purposes, and a color photograph of the employee that clearly shows the full front of the employee’s face and that is at least 1 inch in width and 1.5 inches in height.).
Persons who are listed as commercial cannabis permit holders or owners thereof, who are subject to criminal history records checks pursuant to Section 8.29.05.240(k), shall be required to obtain an Employee Badge if such person also serves as an employee or contractor for the permit holder's commercial cannabis business.
Section 8.29.05.100 - Right to Occupy and to Use Property.
As a condition precedent to the City's issuance of a commercial cannabis permit pursuant to this Chapter, any person intending to open and to operate a commercial cannabis business shall provide sufficient evidence of the legal right to occupy and to use the proposed location. In the event the proposed location is leased from another person, the applicant for a permit under this Chapter shall provide a signed and notarized statement from the owner of the property to demonstrate the property owner has acknowledged and has consented to the operation of a commercial cannabis business on the property.
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Section 8.29.05.110 - Location of Commercial Cannabis Business - Proximity to Sensitive Uses.
(a) Commercial cannabis activity shall be authorized within the following zoning districts of the City: M-1, M-2, M-3, A-1 and A-2 zoning districts. Commercial cannabis activity is prohibited in all other zoning districts of the City.
(b)Notwithstanding subsection (a) of this Section, no commercial cannabis business shall be located within six hundred feet (600') from any school, day care center, youth center, public park, or public library (“Sensitive Uses”). Location distance separating Sensitive Uses, as described above, shall be measured from the exterior of the structure(s). Applicant shall prepare locational map verifying locational distance and shall certify that the structure locations meet the six hundred feet separation.
(c)No commercial cannabis business may operate within any residential zoning district or area of the City.
(d)A commercial cannabis business generally may not operate adjacent to, across a street or alley from, or within two hundred feet (200') of, any residential zoning district or area of the City. Location distance and/or separating commercial cannabis business, as described above, shall be measured from the exterior of the structure(s). Applicant shall prepare locational map verifying locational distance and shall certify that the structure locations meet the two hundred feet separation. However, if an existing building or facility in a City zoning district enumerated in subsection (a) is located adjacent to or across a street or alley from a residential zoning district or area of the City, a commercial cannabis business may be permitted to operate in such location if, in the opinion of City Manager, the operation of a commercial cannabis business in such location would not tend to cause a public nuisance, nor a situation which may result in repeated police department responses or a negative impact on the adjacent residential units or dwellings. Any subsequent expansion of a commercial cannabis business permitted to operate in such a location, which expansion requires a new or amended commercial cannabis permit, shall also be subject to a determination by the City Manager that the expansion would not tend to cause a public nuisance or a situation which may result in repeated police department responses or a negative impact on the adjacent residential units or dwellings. (e)Commercial cannabis businesses shall be required to comply with all zoning, land use, and development regulations applicable to the underlying zoning district in which they are permitted to establish and operate as set forth in Title 17 of the Arvin Municipal Code. (f) Any commercial cannabis business which has been determined by the City Manager to be an existing commercial cannabis business on the effective date of this Chapter shall be exempt from compliance with the limitations prescribed in this Section, unless such location is otherwise determined to constitute a public nuisance or otherwise a disturbance to the adjacent or neighboring uses as determined by the provisions of this Chapter.
Section 8.29.05.120 - Alcohol and Tobacco Restrictions.
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(a) In accordance with Business & Professions Code Section 26054, as may be amended, no commercial cannabis business shall cause or allow the sale (whether retail or wholesale) of alcoholic beverages or tobacco products on its premises. (b) No commercial cannabis business shall cause or allow alcoholic beverages to be dispensed or consumed on its premises.
(c) No commercial cannabis business shall operate in a location that requires persons to pass through a business that sells alcohol or tobacco to access the premises of the commercial cannabis business, or that requires persons to pass through the premises of the commercial cannabis business to access a business that sells tobacco or alcohol. (d) No commercial cannabis business shall operate in a location that is adjacent to a business that sells alcoholic beverages at retail. Applicant shall certify that the commercial cannabis business/structure(s) is not adjacent to a business that sells alcoholic beverages at retail.
Section 8.29.05.130 - Concurrent Regulation with State.
It is the stated intent of this Chapter to regulate commercial cannabis activity in the City concurrently and consistently with State law. Except where an express provision of this Ordinance applies to create an obligation that is more stringent than the minimum standards established by State law, this Chapter shall be construed in accordance with that intent.
Section 8.29.05.140 - Compliance with Laws.
(a) It shall be the responsibility of the commercial cannabis permit holder, including its owners and operators, to ensure that the permitted commercial cannabis business is, at all times, operating in compliance with all applicable state and local laws and regulations, as amended, and any conditions of approval of a State license or City-issued commercial cannabis permit or other entitlement.
(b) Nothing in this Chapter shall be construed as an authorization of any action or conduct in violation of state law or local law with respect to the operation of a commercial cannabis business.
(c) Nothing in this Chapter shall be construed as an authorization by the City, its elected or appointed officials, employees, agents, representatives and/or consultants, collectively or individually, of any conduct in violation of federal law.
Section 8.29.05.150 - Inspections and Enforcement.
(a) No commercial cannabis business shall commence operation, and no commercial cannabis permit application or conditional use permit application shall be approved for any commercial cannabis business, unless and until:
1. The City Manager, or designee, and Police Chief, or designee, have inspected the premises of the commercial cannabis business and reviewed all written procedures, standards and protocols developed by such business pursuant to this Chapter, and have confirmed in writing that the business is in compliance with all applicable requirements of this Chapter and other applicable provisions of the Arvin Municipal
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Code, any applicable local regulations, and any applicable state laws, administration or enforcement of which is within their jurisdiction; and
2. The Fire Chief and Building Official have inspected the premises of the commercial cannabis business and reviewed all written procedures, standards and protocols developed by such business pursuant to this Chapter and have confirmed in writing that the premises are in compliance with the California Building Standards Code and the State Fire Marshal regulations, as adopted by the City, and all other applicable building and fire safety-related requirements, administration or enforcement of which is within their jurisdiction.
(b) In addition to the initial permit inspections pursuant to subsection (a) and after permitted commercial cannabis business activities have commenced, the City Manager, the Building Official, the Police Chief, and the Fire Chief are authorized to conduct reasonable unannounced and suspicion less inspections of the interior and exterior premises of any commercial cannabis businesses at any time during regular business hours (generally eight (8:00) a.m. and seven (7:00) p.m., Monday through Sunday), for the purpose of ensuring compliance with this Chapter and applicable state law as specified in subsection (a). (c) Each commercial cannabis business shall be subject to two mandatory inspections conducted pursuant to subsection (b) per calendar year. Notwithstanding the foregoing, further inspections may be conducted at any time in response to complaints received by the City relating to violations on the premises of a commercial cannabis business. (d) During all inspections conducted pursuant to this Section, the inspecting officials are authorized to photograph and otherwise document the conditions on the premises, and to take such other measures as are reasonably necessary to ascertain whether the business is in compliance with this Chapter, subject to adherence to all HIPAA rights and all other applicable privacy rights unrelated to the purpose and intent of the inspection. Samples of cannabis and cannabis products may be temporarily taken from the commercial cannabis business and retained for the minimum time and to the minimum extent necessary to ascertain compliance with this Chapter, provided that any such samples shall be logged, recorded, and maintained in accordance with the Arvin Police Department standards for evidence.
(e) For all inspections required by this Section (not including complaint-based inspections), inspection fees sufficient to cover the costs of such inspections shall be paid by each commercial cannabis business as part of such business' commercial cannabis permit application fees or annual permit fees.
(f) Failure or refusal of a commercial cannabis business, or any owner, manager, employee or agent thereof, to grant access to the premises of the commercial cannabis business to facilitate any inspection pursuant to this Section shall constitute a violation of this Chapter and shall constitute grounds for the City to obtain an inspection warrant to inspect the commercial cannabis business in accordance with State law.
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(g) All inspections shall be subject to adherence to applicable HIPAA rights and other applicable privacy rights unrelated to the purpose and intent of the inspections. (h) The requirements and remedies set forth in this Section shall be in addition to all other applicable provisions of the Arvin Municipal Code.
Section 8.29.05.160 - Fees and Charges.
(a) No person may commence or continue any commercial cannabis activity in the City without timely paying in full all fees, costs, penalties and charges required in connection with the establishment or operation of a commercial cannabis activity. Fees and charges associated with the establishment or operation of a commercial cannabis activity shall be set by resolution or ordinance of the City Council.
(b) All commercial cannabis businesses operating pursuant to this Chapter shall pay any and all applicable sales, use, business or other taxes, and all license, registration, or other fees required pursuant to federal, state, and local law.
(c) Commercial Cannabis Tax Revenues and Rates are established for Commercial Cannabis businesses in accordance with Title III Revenue and Finance, Chapter 3.19.
1. Pursuant to Section 8.29.05.290(a), the City has limited the total square footage of Commercial Cannabis to 1,350,000 square feet,
2. Pursuant to Section 8.29.05.04(c), the City has limited the Type 12 Microbusiness to a total of 35 business within the current City limits.
3. Due to the limitation of square footage for commercial cannabis business, the applicant of and any assignee shall pay, upon approval of each Commercial Cannabis permit, a minimum sum of $25,000.00 per quarter, regardless of operational status. The payment shall be paid within 10 days of the approval/conditional approval of a Commercial Cannabis permit. i. Should the Commercial Cannabis business be operational, the minimum quarterly payment shall be credited toward that business’s following quarter’s tax liability.
ii. Should the Permit Holder fail to begin operations within two years of the first permit’s issuance, payment of the quarterly $25,000.00 minimum required payment shall not be refunded. The quarterly payment is required due to the limited square footage for Commercial Cannabis and is established as a deterrent against non-operational permit holders. The nonoperation of permitted Commercial Cannabis establishments is determined to be detrimental to the health and welfare of the City.
Section 8.29.05.170 - Violations and Enforcement.
(a) It is unlawful for any person to violate any provision of this Chapter. (b) Each and every violation of this Chapter constitutes a misdemeanor punishable in accordance with Chapter 1.08.010 of the Arvin Municipal Code.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(c) Each and every violation of this Chapter constitutes a public nuisance which may be abated by the City pursuant to the Arvin Municipal Code.
(d) Violations of this Chapter may be redressed by any and all applicable civil remedies available to the City, including but not limited to civil actions for injunctive relief. (e) Violations of this Chapter are subject to all applicable administrative remedies under the Arvin Municipal Code, including but not limited to issuance of administrative citations.
Notwithstanding the foregoing, the administrative citation penalty for all violations of this Chapter, within a rolling twelve (12) month period, shall be as follows: one thousand dollars and no cents ($1,000.00) per violation.
(f) Any person that violates any provision of this Chapter shall be guilty of a separate offense for each and every day during any portion of which the violation exists. and shall be penalized pursuant to this Chapter and the applicable provisions of the Arvin Municipal Code.
(g) The remedies set forth in this Section are cumulative of each other and of any other legal remedies available at law.
(h) The City Manager may suspend or revoke a commercial cannabis permit when the permit holder or anyone acting on its behalf has committed any of the following acts or maintained any of the following conditions:
1. Any action or condition which would constitute grounds for denial of a commercial cannabis permit.
2. Any violation of this Chapter, the Arvin Municipal Code, any applicable state law governing the commercial cannabis business or activity, or any applicable condition of approval of the commercial cannabis permit or any other entitlement pertaining to the operation of the commercial cannabis business. (i) Prior to suspending or revoking a commercial cannabis permit, the City Manager shall conduct a hearing. Written notice of the hearing shall be provided to the permit holder at least five (5) calendar days prior to the hearing. The notice shall contain the basis for suspending or revoking the commercial cannabis permit. Notice may be provided by either personal service, U.S. mail and/or posting or depositing the notice at the commercial cannabis business. After the hearing, the City Manager shall provide notice of the decision whether to suspend or revoke the commercial cannabis permit in the same manner applicable to the notice of hearing. The decision of the City Manager shall be final, subject to judicial review pursuant to Code of Civil Procedure Sections 1094.5 and 1094.6 within ninety (90) calendar days of the date of the decision. The commercial cannabis permit holder has no right to an administrative appeal of the decision. (j) The City Manager may immediately suspend a commercial cannabis permit without notice or hearing, subject to a subsequent hearing prior to reinstatement or revocation pursuant to subsection (i), under the following circumstances:
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
1. The commercial cannabis permit holder is convicted of a public offense in any court for the violation of any law which would be grounds for denial of a commercial cannabis permit.
2. The City Manager, Chief of Police, Fire Chief or any other authorized public safety or building official determines that immediate suspension is necessary to protect the public health, safety and welfare of the community. The City Manager shall provide notice of the grounds for immediate suspension of the commercial cannabis permit, and the suspension shall only be for as long as reasonably necessary to address the grounds which led to the suspension.
Section 8.29.05.180 - Limitations on City's Liability.
To the fullest extent permitted by law, the City shall not assume any liability whatsoever with respect to having issued a commercial cannabis permit or otherwise approving the operation of any commercial cannabis business pursuant to this Chapter. As a condition of approval of any commercial cannabis permit issued pursuant to this Chapter, the person to which a commercial cannabis permit is issued shall be required to meet all of the following conditions:
(a) Execute an agreement indemnifying, defending (at its sole cost and expense), and holding the City and its officers, employees, representatives, and agents harmless from any and all claims, losses, damages, injuries or liabilities associated with permitting or approving the operation of a commercial cannabis activity or the operation thereof or associated with the commercial cannabis business or its members' violation of any federal, state or local laws. (b) Maintain insurance at coverages, limits, and with conditions thereon determined necessary by the City Manager, in consultation with the City Attorney. Commercial General Liability insurance shall be maintained at all times with coverage limits that meet or exceed one million dollars ($1,000,000.00) per occurrence and in the aggregate. In the alternative to maintaining Commercial General Liability insurance, a commercial cannabis permit holder may post a bond, in a form subject to approval by the City Attorney, with the City in the minimum amount of one million dollars ($1,000,000.00). The City Manager may, in his or her sole discretion, increase the minimum bond amount required by a commercial cannabis permit holder.
(c) Reimburse the City for any and all costs and expenses, including attorneys' fees and costs and court costs, that the City may be required to pay as a result of any legal challenge related to the City's approval of a commercial cannabis permit pursuant to this Chapter or the City's approval of the operation of a commercial cannabis activity. The City may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the obligations imposed under this Section.
The City may revoke a commercial cannabis permit for failure to maintain the required insurance or bond. The City may provide a commercial cannabis permit holder with written notice of its intent to revoke the commercial cannabis permit and for failure to maintain the required insurance or bond. Within seven (7) calendar days from the date upon the notice of intent to terminate, a commercial cannabis permit holder shall tender to the City proof that it has obtained the required insurance or posted the required bond. If a commercial cannabis permit holder fails to timely
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
provide proof of the required insurance or bond to the City, the commercial cannabis permit shall be revoked, and the commercial cannabis permit holder shall immediately cease all commercial cannabis business activities. Failure to immediately cease all commercial cannabis business activities shall subject the commercial cannabis permit holder to the penalties, enforcement and cost recovery provisions established within the Arvin Municipal Code and any other legal remedies available to the City.
Section 8.29.05.190 - Commercial Cannabis Permit Application Procedures and Requirements.
(a) In addition to the authority granted pursuant to the express provisions of this Section and Chapter, to the extent consistent with this Chapter and other applicable law, the City Council may by resolution adopt such fees, and the City Manager may adopt such forms and procedures, as are necessary to implement this Chapter with respect to the review, processing, evaluation, selection, investigation, approval, denial, renewal, suspension, and revocation of commercial cannabis permits and related appeals. (b) The owner of a proposed commercial cannabis operation shall file an application with the City Manager upon a form provided by the City and shall pay an application filing fee as established by resolution of the City Council, as may be amended from time to time. The fee may be established as a trust deposit for actual costs. The fee, or the initial trust deposit, shall be in an amount the City Manager estimates will cover the costs of reviewing and processing the application. If a trust deposit-based fee is established, it shall be used and drawn upon as a retainer to cover the actual costs incurred by the City. If the initial amount of the trust deposit is not sufficient, the applicant shall provide additional amounts as necessary within thirty (30) days of a request from the City. If the applicant fails to do so, application review and processing shall cease and shall not continue until such additional amounts are paid.
(c) Each commercial cannabis permit application shall contain, at minimum, the following:
1. The printed full name, signature, date of birth, social security number, a color photocopy of the California Driver's license or equivalent form of identification approved by the City Manager, and current address and telephone number of all owners of and responsible persons for the commercial cannabis business that is the subject of the application.
2. Signed consent of each owner and responsible person, who is identified pursuant to subsection (c)(1) and who is not required to obtain an employee badge pursuant to Section 8.29.05.090, to a fingerprint-based state and federal criminal history records check conducted by the City or an agency authorized or requested to do so by the City, including but not limited to fingerprint analysis conducted utilizing the California Department of Justice Live Scan system or any other system deemed necessary or appropriate in the discretion of the City Manager.
3. The address of the commercial cannabis business to which correspondence from the City is to be sent, if other than the permitted premises.
4. The names and addresses of all businesses operated by, and the employment of, the applicant and its owners for the five (5) years immediately preceding the date of the application.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
5. Any litigation in which the applicant(s) has been involved within the five (5) years immediately preceding the date of the application and a statement of whether any business currently operated by the applicant(s) or operated by the applicant(s) within the five (5) years immediately preceding the date of the application has been investigated or the permit or license authorizing the operation of such business has been revoked or suspended within the five (5) years immediately preceding the date of the application.
6. The address of any commercial cannabis business currently being operated by the applicant or any of its owners, or which has been previously operated by any of them.
7. The existing and/or anticipated supply sources and product supply chain for all cannabis and cannabis products entering and leaving the commercial cannabis business, including the site(s) where cultivation occurs, where the cannabis or cannabis products are processed or manufactured, where any required testing of cannabis or cannabis products occurs, and distribution information. Packaging and labelling information and criteria, demonstrating compliance with Section
8.29.05.240(w), shall also be included.
8. Odor control devices and techniques demonstrating compliance with Section
8.29.05.240(i), sufficient to prevent odors from cannabis from being detectable off of the premises.
9. Procedures for safety and adequately identifying, storing, managing, and disposing of all litter, waste, hazardous materials, contaminants, or adulterated, deteriorated or excess cannabis or cannabis products or byproducts of the commercial cannabis business, and demonstrating compliance with Section 8.29.05.240(t).
10. Information reflecting adequate capitalization of the commercial cannabis business.
11. Procedures for inventory control to prevent diversion of cannabis and cannabis product, employee screening, storage of cannabis and cannabis product, personnel policies, and record-keeping procedures.
12. A detail of the operating procedures to be utilized at the facility, including a description of how chemicals and fertilizers will be stored, handled, used and disposed of, manufacturing methods, the transportation process, inventory procedures, and quality control procedures.
13. A site plan and floor plan of the premises of the commercial cannabis business denoting the property lines and the layout of all structures and areas of the commercial cannabis business including storage, cultivation, manufacturing, testing, distributing, reception or waiting areas, and all ancillary support spaces, and the relationship of the facility to adjacent properties and land uses, indicating compliance with the California Building Standards Code and Title 17 of the Arvin Municipal Code.
14. A plan for the proposed signage at the site, including size, height, colors and design of all signage, demonstrating compliance with Section 8.29.05.240(g). A City sign permit issued pursuant to applicable provisions of the Arvin Municipal Code shall be required.
15. A security plan satisfactorily addressing all required security measures identified in Section 8.29.05.080 and lighting as required by Section 8.29.05.240(x).
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
16. Standard operating procedures detailing how operations will comply with state and local regulations, how safety and quality of products will be ensured, recordkeeping procedures for financing, testing, and adverse event recording, and product recall procedures.
17. Proposed days and hours of operation.
18. Recycling and waste disposal procedures reflecting, to the extent practicable, efficiency and conservation of materials and resources used in the commercial cannabis business.
19. Youth access restriction procedures demonstrating compliance with Section
8.29.05.240(h).
20. A transportation plan providing procedures for safely and securely transporting all cannabis, cannabis products and currency to and from the premises.
21. A detailed description of energy and water usage plan enumerating best practices and leading industry practices in efficient utilization of both resources.
22. Evidence of compliance with all applicable insurance-related requirements of this Chapter and State law, including but not limited to Section 8.29.05.180.
Endorsements reflecting the City's status as an additional insured on all required policies shall also be included.
23. A copy of the valid and current City business license held by the applicant.
24. A copy of the valid and current seller's permit issued by the California Department of Tax and Fee Administration (formerly the Board of Equalization) to the applicant, or confirmation from said agency that a seller's permit is not required. If a seller's permit is required but the applicant has not yet received it, an attestation that the applicant is currently applying for a seller's permit shall suffice, provided that a copy of the permit shall be provided to the City immediately upon being obtained by the applicant, and the applicant shall not commence activities for which a seller's permit is required until it is obtained.
25. Identification of any and all other licenses and permits currently or formerly held by the applicant, and any other applications pending review for the applicant, relating to commercial cannabis activities, from any licensing or permitting authority, and specific identification of any licenses or permits denied to, suspended for, or revoked from the applicant.
26. Signed acknowledgment of the requirements of this Chapter, including biannual inspections as established within Section 8.29.05.150.
27. Signed authorization for the City Manager to seek verification of the information contained in the application.
28. A signed statement by the applicant that he or she certifies under penalty of perjury that all the information contained in the application is true and correct.
29. Any other information deemed necessary by the City Manager. (d) A commercial cannabis permit application may be denied based upon any of the following grounds:
1. The applicant has been issued a state or local permit or license to conduct commercial cannabis activities (in California or another state) and the permit or license has been suspended or revoked, or the applicant has otherwise been sanctioned or subjected to administrative disciplinary action relating to the permit
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
or license by any licensing or permitting authority, or the applicant has been involved in a cannabis business that was ordered closed by a civil injunction or other court order based on a violation of law.
2. The applicant, or any owner or responsible person of the commercial cannabis business that is the subject of the application, has been convicted of a serious or violent offense as listed within California Penal Code Sections 667.5 and 1192.7(c), or the applicant has been convicted of any other offense listed within Business and Professions Code Section 26057.
3. The applicant, or any owner or responsible person of the commercial cannabis business that is the subject of the application, has been convicted of a misdemeanor involving theft, dishonesty, fraud, narcotics sales or narcotic trafficking within the five (5) years preceding the date of the application.
4. The applicant, or any owner or responsible person of the commercial cannabis business that is the subject of the application, has been convicted of a felony involving the illegal use, possession, transportation, distribution or similar activities related to controlled substances, as defined within the Federal Controlled Substance Act, unless the applicant received a Certificate of Rehabilitation as defined in that Act, within the ten (10) years preceding the date of the application.
5. The applicant, or any owner or responsible person of the commercial cannabis business that is the subject of the application, has engaged in misconduct related to the ownership, qualifications, functions or duties of their position with the commercial cannabis business.
6. The applicant, or any owner or responsible person of the commercial cannabis business that is the subject of the application, has engaged in unlawful, fraudulent, unfair, or deceptive business practices as defined by the Arvin Municipal Code and/or state or federal law.
7. The applicant, or any owner or responsible person of the commercial cannabis business that is the subject of the application, is under the age of twenty-one (21).
8. The applicant has violated or failed to comply with any of the requirements of this Chapter or other applicable state or local laws or regulations, or any condition of any entitlement issued to the commercial cannabis business, as determined by the City Manager.
A conviction within the meaning of this Chapter means a plea or verdict of guilty or a conviction following a plea of nolo contendere.
This Section shall not constitute an exhaustive list of grounds for denial of a commercial cannabis application. The City Manager may promulgate regulations identifying additional grounds for denial.
(e) The City Manager shall review each application to determine whether it contains all of the required information. If the application does not contain all of the required information, it shall be returned to the applicant for completion. The City Manager shall endeavor to conclude his or her review within ninety (90) days of the filing of the application. If additional time is necessary, the City Manager will advise the applicant of an estimated review time.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(f) In reviewing an application for a commercial cannabis permit, the City Manager may request whatever additional information is deemed necessary to determine whether the application meets the requirements of this Chapter or other applicable local laws or regulations.
(g) The City Manager shall have the authority to either approve or deny the application for a commercial cannabis permit. The City Manager shall approve the application if and only if it meets all applicable requirements of this Chapter. Notwithstanding any other provision of this Chapter, the City Manager, when approving a commercial cannabis permit, may place any additional limitations and conditions on the operation of a commercial cannabis business as he or she deems necessary, consistent with the with this Chapter and any regulations promulgated pursuant hereto.
(h) Payment of an annual commercial cannabis permit fee, in an amount set by resolution of the City Council sufficient to cover the City's annual costs of administering the mandatory regulatory functions of this Ordinance in regard to the permitted commercial cannabis business, including but not limited to inspections, audits and investigations, shall be required before issuance or renewal of any commercial cannabis permit pursuant to this Chapter. The fee may be established as a trust deposit for actual costs. The fee, or initial trust deposit, shall be in an amount the City Manager estimates will cover the City's annual costs as described in this paragraph. If a trust deposit-based fee is established, the trust deposit shall be used and drawn upon as a retainer to cover the actual costs incurred by the City. If the initial amount is not sufficient, the applicant shall provide additional amounts as necessary upon request from the City. Failure to pay such additional amounts within thirty (30) days of a request by the City shall constitute a violation of this Ordinance and grounds for denial, non-renewal or revocation of the subject commercial cannabis permit. (i) When an application is denied, the City Manager shall provide a statement of decision giving the reasons for the denial and the findings upon which the decision is based. Notice of the denial may be provided by either personal service or U.S. mail. Notice is presumed to be served upon the applicant once deposit into the U.S. mail. Any person denied a commercial cannabis permit shall have the right to appeal such denial in accordance with this Section.
(j) Any appeal of a denial of an application shall be filed and conducted as prescribed in this subsection.
1. Within ten (10) calendar days from the date of the denial of an application, the aggrieved party may appeal such action by filing with the City Clerk a written appeal setting forth the grounds for reversing the denial. The time requirement for filing an appeal shall be deemed jurisdictional and may not be waived. Appeals not timely filed or not setting forth the basis for the appeal are defective and shall be dismissed.
2. Upon receipt of such written appeal, the City Clerk shall set the matter for a hearing before the City Manager. The hearing shall be conducted pursuant to the following procedures:
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
i. All hearings shall be recorded. Any party may, at their sole expense, have the hearing transcribed by a certified shorthand reporter. ii. Hearings need not be conducted according to the technical rules of evidence.
iii. Any relevant evidence shall be admitted, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.
iv. Oral evidence shall be taken only on oath or affirmation. The City Manager shall have the power to administer oaths.
v. Irrelevant and unduly repetitious evidence shall be excluded. vi. Each party shall have the right to: call and examine witnesses on any matter relevant to the issues of the hearing; introduce documentary and physical evidence; cross-examine opposing witnesses on any matter relevant to the issues of the hearing, subject to the control of the City Manager, including the imposition of reasonable alternatives to cross-examination; impeach any witness regardless of which party first called the witness to testify; rebut the evidence; and be represented by anyone who is lawfully permitted to do so. vii. The City Manager may take official notice, either during the hearing or after submission of the matter for decision, of any fact which may be judicially noticed by the courts of this state or of official records, regulations, rules, and decisions of state and local agencies, boards and departments and of City ordinances. In addition, the City Manager may take official notice of matters in its own files and of prior proceedings under this chapter involving the same issues. If applicable, the City Manager may also take official notice of any generally accepted technical or scientific matter within their expertise. The parties present at the hearing shall be informed of the matters to be noticed, and those matters should be noted in the record, referred to therein, or appended thereto. Any such party shall be given a reasonable opportunity on request to refute the officially noticed matters by evidence or by written or oral presentation of authority, and
viii. The City Manager may provide for reasonable continuances of the hearing, on his/her own initiative or at the request of a party, as necessary to properly conduct the appeal.
The hearing shall be set for hearing in a reasonable time after the date of filing the appeal with the City Clerk, but in no event later than ninety (90) days from the date of such filing. At least ten (10) days prior to the date of the hearing on the appeal, the City shall notify the appellant of the time and the place of the hearing. Notice may be provided by either personal service or U.S. mail. Notice is presumed to be served upon deposit into the U.S. mail.
3. At the conclusion of the hearing, the City Manager shall deliberate and reach a decision within fifteen (15) calendar days. The decision and the reason(s) for the decision shall be reduced to writing. The City Manager may affirm, reverse, or modify the denial issued pursuant to this Code as the facts and law warrant, subject to the following limitations:
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
i. The City Manager shall not have authority to waive any requirements of the Arvin Municipal Code or other applicable law.
ii. Nothing in these procedures shall be deemed to authorize the City Manager to deviate from unambiguous provisions of the governing code or statute, or well-established interpretations of the same, based upon expert opinions or other reliable evidence.
A copy of the decision shall be sent by mail or otherwise to the appellant. Where known, a copy may also be provided by email.
4. The decision of the City Manager shall be subject to a further administrative appeal to the Planning Commission, which shall be conducted in accordance with the procedures and requirements applicable to the appeal to the City Manager pursuant to this subsection. The decision of the Planning Commission shall be subject to further administrative appeal to the City Council, which shall be conducted in accordance with the procedures and requirements applicable to the appeal to the City Manager pursuant to this subsection.
5. The decision of the City Council on the appeal shall constitute a final administrative decision. The appellant may thereafter file a petition for writ of mandate in superior court pursuant to Code of Civil Procedure Section 1094.5 and 1094.6 within ninety (90) calendar days of the date of the decision.
Section 8.29.05.200 Development Agreement.
A qualified applicant, pursuant to subsection (b) of this Section, may apply to enter into a development agreement with the City pertaining to a commercial cannabis operation. The provisions of this Section shall apply to such applications. (a) Content and Procedures.
(1) Development agreements entered into pursuant to this Chapter shall set forth the terms and conditions under which the commercial cannabis business will operate that are in addition to the requirements of this Chapter, including, but not limited to, public outreach and education, community benefit, community service, payment of fees and other charges as mutually agreed, and such other terms and conditions that will protect and promote the public health, safety, and welfare of the City.
(2) The procedures for commercial cannabis development agreements shall comply with this Chapter, Chapter 16.40 of the Arvin Municipal Code, and Article 2.5 of Chapter 4 of Division 1 of Title 7 of the California Government Code. To the extent there is a conflict between this Chapter and Chapter 16.40 of the Arvin Municipal Code with respect to a development agreement for a commercial cannabis business, this Chapter shall govern.
(b) Qualified Applicant. Development agreements are for substantial development projects, often requiring an investment in infrastructure and/or improvements, payment of development impact fees, and contribution of non-restricted funds that benefit the community. Such agreements are special contracts to be negotiated with
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property owners or those with an interest in the land. A qualified applicant is a person who meets all of the following criteria, with satisfaction of each criterion to be determined in the sole discretion of the City Manager:
(1) The applicant has a pending or approved application for a commercial cannabis permit on file with the City pertaining to the real property that will be subject to the development agreement.
(2) The applicant holds a legal or equitable interest in the real property that will be the site of the commercial cannabis business. If the applicant does not own the property, the applicant must have a legal right to purchase or develop the property and/or notarized written consent from the owner of the property to operate a commercial cannabis business on the property and to enter into a development agreement with the City pertaining to the property. (c) Filing Requirements.
(1) Only a qualified applicant may file an application to enter into a development agreement. An applicant shall provide, to the satisfaction of the City Manager, written proof of meeting the criteria in subsection (b) above, as well as proof of the authority of any agent or representative to act for the applicant.
(2) The City Manager shall prescribe the form for each application, notice and documents provided for or required under this Section for the preparation and implementation of development agreements. The applicant shall complete and submit such an application form to the City Manager, along with a deposit for the estimated direct and indirect costs of processing the development agreement. Each applicant pursuant to this Section shall be required to pay a development agreement application fee, in an amount established by resolution of the City Council, sufficient to cover the City’s costs of review and processing of the development agreement application pursuant to this Section. The fee may be established as a trust deposit for actual costs. The fee, or the initial trust deposit, shall be in an amount the City Manager estimates will cover the costs of reviewing and processing the application. If a trust deposit-based fee is established, the trust deposit shall be used and drawn upon as a retainer to cover the actual costs incurred by the City. If the initial trust deposit is not sufficient, the applicant shall provide additional amounts as necessary within thirty (30) days upon of a request from the City. If the applicant fails to do so, the application review and processing shall cease and shall not continue until such additional amounts are paid.
(3) The City Manager shall require an applicant to submit such information and supporting data as the City Manager considers necessary to process the application, including but not limited to a community benefit assessment to evaluate the benefits the development agreement will provide to the community.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(d) Processing Requirements.
(1) The City Manager shall endorse on the application the date it is received.
An application or related document shall not be complete until an estimated deposit for the cost of processing has been paid to the City. The City Manager shall review the application and determine any additional requirements necessary to complete processing of the application. If within thirty (30) days of receiving the application the City Manager finds that all required information has not been submitted or the application is otherwise incomplete or inaccurate, the processing of the application and the running of any limits shall be suspended upon written notice to the applicant and a new thirty (30) day period shall commence once the required material is received by the City Manager.
(2) If the City Manager finds that the application is complete, it shall be accepted for filing and the applicant so notified. After receiving the required information and determining that the application is complete, the City Manager shall prepare a staff report and recommendation to the Planning Commission and City Council stating whether or not the agreement as proposed or in an amended form would be consistent with policies of the City, this Chapter and any applicable general or specific plan. The City Attorney shall review the proposed development agreement as to legal form.
(3) Notice of a hearing regarding the development agreement shall be given by the City Manager and shall comply with the requirements of Section 65867 of the California Government Code, as may be amended, as well as in the manner set forth in this Code.
(4) The Planning Commission shall review the proposed development agreement and provide a recommendation to the City Council to approve, approve with modifications or deny the proposed development agreement.
If the Planning Commission fails to take action within sixty (60) days of opening the hearing on the matter, such failure shall be deemed to have made a recommendation of denial to the City Council unless the applicant has requested an extension of time, either in writing or on the record, which has been approved by the Planning Commission prior to the running of the sixtieth day.
(5) The proposed development agreement shall be set for hearing and consideration before the City Council within sixty (60) days of the recommendation of the Planning Commission, unless the applicant agrees in writing to an extension of time with the City Manager prior to the matter being heard by the City Council.
(6) Within ten (10) calendar days after the City enters into any development agreement pursuant to this Section, the City Clerk shall have the agreement recorded with the County Recorder. If the parties to the agreement or their
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
successors in interest amend or cancel the agreement as provided in Section 65868 of the California Government Code, or if the City terminates or modifies the agreement as provided in Section 65865.1 of the California Government Code for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the City Clerk shall have notice of such action recorded with the County Recorder.
(e) Findings and Development Agreement Conditions. After the City Council completes the public hearing, the City Council may not approve the development agreement unless it finds that the provisions of the agreement:
(1) Are consistent with the goals, objectives, and policies of the general plan and any applicable specific plan;
(2) Are compatible with the uses authorized in and the regulations prescribed by this Chapter, zoning district in which the activity is located, and area in which the real property is located;
(3) Will not be detrimental to the health, safety, environmental quality, and general welfare of the community;
(4) Will provide for or result in contributions, services or facilities that benefit the community, which may include, but are not limited to, public facilities, improvements, and services, parks, recreation and open space improvements, public art, youth sports programs, other public youth benefit programs, substance abuse awareness and recovery programs, and other public service programs.
(5) Will not adversely affect the orderly development of property or the preservation of property values;
(6) Provides for payment by the applicant of all costs associated with preparing and entering into the agreement; and
(7) Provides for a reasonable penalty for any violation of the development agreement.
(f) Effectiveness of a development agreement pursuant to this Section shall be contingent upon issuance of a commercial cannabis permit and all other entitlements necessary to operate a commercial cannabis business on the subject property.
(g) Modifications and Extensions.
(1) The provisions of Section 65868 of the California Government Code shall apply for all modifications, with the exception of Minor Modifications/Changes, extensions or other amendments of the terms of a development agreement subject to this Chapter.
(2) Either party may propose an amendment or termination of an approved
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development agreement subject to the following:
(i) The procedure for amending or terminating the development agreement is the same as the procedure for entering into an agreement in the first instance.
(ii) The development agreement may be amended or cancelled only by the mutual consent of the parties, as provided in Section 65868 of the California Government Code.
(3) Nothing herein shall limit the City’s ability to terminate or modify the agreement consistent with Section 65865.1 or 65865.3 of the California Government Code, or as may be amended.
(4) Minor modifications/changes to a Development Agreement may be authorized by the City Manager, upon consultation with the City Attorney. (5) The Development Agreement may necessitate further planning and development of the Project and may demonstrate that refinements and changes are appropriate with respect to the details and performance in implementing the Project under a Development Agreement. The Development Agreement may permit a certain degree of flexibility with respect to the details of the development of the Project and with respect to those items covered in general terms under a Development Agreement. A Minor Changes (as hereinafter defined) when found to be necessary or appropriate, a written request shall be submitted to the City Manager, unless otherwise required by federal, state or local ordinance and/or regulation, effectuate such changes or adjustments through administrative amendments executed by the City Manager or designee. Upon approval of a Minor Modification, it shall be attached as addenda and become a part of the Development Agreement. Minor Modifications shall be recorded with the Development Agreement.
(6) The term “Minor Modifications/Changes” collectively means:
(a) minor deviations to the Project Approvals that are permitted under the Existing City Requirements and are reasonably approved by the City Manager;
(b) a reduction in the parking ratio requirements for the Project under consistent with the Arvin Municipal Code, provided that (i) the reduction does not exceed ten percent (10%) of the Code requirement, and (ii) the reduction is approved by the City Manager, which approval shall not be unreasonably withheld or denied; or
(c) such other changes, modifications or adjustments to the Project Approvals, which the City Manager determines are consistent with the
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
overall intent of the Project Approvals and which do not materially alter the overall nature, scope, or design of the Project, and which are consistent with the requirements of Chapter 8.29.05 of the Arvin Municipal Code and any commercial cannabis activity regulations or policies established by the City Manager.
(7) Assumption Agreement(s) - No Modification. An Assumption Agreement shall be subject to the terms of an approved Development Agreement. An Assumption Agreement shall not limit, restrict, modify, alter, amend or otherwise change in any manner the rights and obligations of an Assignor or Assignee under the DA, and in the event of any conflict between the terms and provisions of an Assumption Agreement and the terms and provisions of the DA, the terms and provisions of the DA shall control.
(8) In effecting any Minor Changes, the City shall cooperate with the Developer, provided that the permitted uses are not modified from those in the Project Approvals and any changes are in accordance with the Existing City Requirements. Minor Changes shall not be deemed to be an amendment to a Development Agreement under California Government Code section 65868 but are ministerial clarifications and adjustments, and unless otherwise required by law, no such administrative amendments shall require prior notice or hearing by the City Council. Any amendment or change requiring a environmental impact report, or a supplement thereto, pursuant to CEQA shall not be considered a Minor Change, but shall be considered substantive amendment which shall be reviewed and approved by the City Council as determined by the applicable provisions of the Arvin Municipal Code relating to the hearing and approval procedures for the specific Project Approval.
Section 8.29.05.210 - RESERVED
Section 8.29.05.220 - Records and Reporting.
(a) Commercial cannabis operations shall maintain on the permitted premises the following records either in paper or electronic form:
1. The full name, address, and telephone numbers of the owner and lessee of the property.
2. The name, date of birth, address, and telephone number of each employee and independent contractor of the commercial cannabis operation; the date each was hired or retained; and the nature of each person's participation in the commercial cannabis business.
3. Copies of all required state licenses.
4. An inventory record documenting the dates and amounts of cannabis and cannabis products received at the site, the daily amounts of cannabis and cannabis products on the site, and the daily amounts of cannabis and cannabis products leaving the site for any reason, including but not limited to cannabis that is sold, delivered, or distributed.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
5. A written accounting of all expenditures, costs, revenues and profits of the commercial cannabis operation, including but not limited to cash and in-kind transactions.
6. A copy of all insurance policies related to the operation of the commercial cannabis operation.
7. A copy of the commercial cannabis operation's most recent year's financial statement and tax return.
8. Proof of a valid and current permit issued by the City in accordance with this chapter, and the equivalent State of California license to operate the commercial cannabis business. Every commercial cannabis business shall display at all times during business hours the City permit issued pursuant to the provisions of this Chapter, and the equivalent State license, in a conspicuous place so that it may be readily seen by all persons entering the location of the commercial cannabis operation.
(b) Subject to HIPAA rights and regulations unrelated to the purpose and intent of the inspection, each commercial cannabis business shall allow City officials, upon request, to inspect all books, accounts, records, information and data required to be maintained by the cannabis business pursuant to this Chapter or otherwise relevant to its permitted activities for the purpose of facilitating any inspection, audit or investigation deemed necessary by the City. Such records shall be produced within twenty-four (24) hours after receipt of the City's request.
(c) By December 1 of each year, each commercial cannabis business shall file with the City Manager a complete audited report detailing its financial operations for the previous fiscal year, including its gross revenues, net profits, and total expenditures, which report shall be certified by an independent certified public accountant in accordance with generally accepted auditing and accounting principles. The report shall also include a discussion, analysis, and verification of each of the records required to be maintained pursuant to this Chapter. The information contained in the report shall be made available to the City in standard electronic format which shall be compatible with Microsoft Office programs and software and which can easily be imported into either Excel, Access or any other contemporary software designated by the City Manager, and shall be subject to audit by the City.
(d) All records required by this Chapter shall be maintained by commercial cannabis businesses for a period of not less than seven (7) years, and commercial cannabis businesses shall maintain accurate records of all commercial cannabis activities. All such records shall be made available for immediate inspection by the City upon request consistent with California Business and Professions Code Section 26160.
Section 8.29.05.230 - Prohibition on Transfer of Commercial Cannabis Permits. (a) No commercial cannabis business shall operate under a commercial cannabis permit issued pursuant to this Chapter at any place or location other than that identified in the commercial cannabis permit.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(b) Any permit issued pursuant to this Chapter shall be null and void upon sale or transfer of ownership of the commercial cannabis business.
(c) Any attempt to transfer or any transfer of a commercial cannabis permit issued pursuant to this Chapter shall be void and the commercial cannabis permit shall be deemed immediately revoked and no longer of any force or effect. (d) Notwithstanding (b) or (c) above, the City Manager may conditionally approve a Commercial Cannabis Business permit transfer subject to the proposed transferee submittal of all required application materials (new Commercial Cannabis Permit), pays all applicable fees and charges, and independently meets the requirements of this Chapter.
Prior to approval or conditional approval of a transfer, the existing Commercial Cannabis permit must have met all the applicable requirements.
Section 8.29.05.240 - General Operating Requirements for Commercial Cannabis Businesses.
In addition to those operating requirements specifically set forth elsewhere in this Chapter and except as may otherwise be expressly set forth in this Chapter, the following operating requirements shall apply to all commercial cannabis businesses operating in the City:
(a) Hours of Operation. Normal business hours for commercial cannabis businesses are eight (8:00) a.m. and seven (7:00) p.m., Monday through Sunday. Subject to the night-time operating restrictions applicable to deliveries set forth in Section 8.29.05.280, commercial cannabis businesses may operate outside normal business hours, provided that any business activity conducted outside of normal business hours shall be sensitive to surrounding land uses and occupants and shall not result in excessive light, noise or other impacts that could cause a nuisance to members of the surrounding community. (b) Restriction on Consumption. Cannabis shall not be consumed on the premises of any commercial cannabis businesses, except that medicinal cannabis may be consumed within a clinic, health care facility, residential care facility, or residential hospice licensed pursuant to applicable provisions of the California Health & Safety Code, as stated in Section 8.29.05.06 of the Arvin Municipal Code.
(c) No cannabis or cannabis products or graphics depicting cannabis or cannabis products shall be visible from the public right-of-way or other public area or any adjacent property. No outdoor storage of cannabis or cannabis products is permitted at any time. (d) Reporting and Tracking of Product and of Gross Sales. Each commercial cannabis business shall have in place a point-of-sale tracking system to track and to report on all aspects of the commercial cannabis business including, but not limited to, such matters as tracking of cannabis and cannabis products, inventory data, and gross sales (by weight and by sale price) and shall ensure that such information is compatible with the City's recordkeeping systems. The system must have the capability to produce historical transactional data for review by the City. All information provided to the City pursuant to this subsection shall be confidential and shall not be disclosed, except as may otherwise be required under law.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(e) All cannabis and cannabis products sold, cultivated, manufactured, delivered, distributed or tested shall be cultivated, manufactured, delivered, distributed or tested by State licensees that maintain operations in full conformance with the state and local laws and regulations.
(f) Emergency Contact. Each commercial cannabis business shall provide the City Manager with the name and telephone number (office and mobile) of an on-site employee or owner to whom emergency notice can be provided on a 24-hour per day, 7-day per week basis. (g) Signage and Notices.
1. In addition to the requirements otherwise set forth in this Section, business identification signage for a commercial cannabis business shall conform to the signage requirements of the Arvin Municipal Code, including, but not limited to, issuance of a City of Arvin sign permit.
2. Business identification signage shall be limited to that needed for identification only and shall not contain any logos or information that identifies, advertises, or lists the services or the products offered. No commercial cannabis business shall advertise by having a person holding a sign and advertising the business to passersby, whether such person is on the premises of the commercial cannabis business or elsewhere including, but not limited to, the public right-of-way.
3. No signs placed on the premises of a commercial cannabis business shall obstruct any entrance or exit to the building or any window.
4. Each entrance to a commercial cannabis business shall be visibly posted with a clear and legible notice indicating that smoking, ingesting, or otherwise consuming cannabis on the premises or in the areas adjacent to the commercial cannabis business is prohibited.
5. Signage shall not be directly illuminated, internally or externally. No banners, flags or other prohibited signs may be used at any time.
(h) Minors. Persons under the age of twenty-one (21) years shall not be allowed on the premises of a commercial cannabis business. It is unlawful and a violation of this Chapter for any person to employ any person at a commercial cannabis business who is not at least twenty-one (21) years of age. The entrance to the commercial cannabis business shall be clearly and legibly posted with a notice that no person under the age of twenty-one (21) years of age is permitted to enter upon the premises of the commercial cannabis business. (i) Odor Control. Odor control devices and techniques shall be incorporated in all commercial cannabis businesses to ensure that odors from cannabis are not detectable off-site.
Commercial cannabis businesses shall provide a sufficient odor absorbing ventilation and exhaust system so that odor generated inside the commercial cannabis business that is distinctive to its operation is not detected off the premises, anywhere on adjacent property or public rights-of-way, on or about the exterior or interior common area walkways, hallways, breezeways, foyers, lobby areas, or any other areas available for use by common tenants or the public, or within any other unit located inside the same building as the commercial cannabis business. As such, commercial cannabis businesses must install and
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
maintain the following equipment or any other equipment which the City Manager determines has the same or better effectiveness:
1. An exhaust air filtration system with odor control that prevents internal odors from being emitted externally;
2. An air system that creates negative air pressure between the commercial cannabis business's interior and exterior so that the odors generated inside the commercial cannabis business are not detectable on the outside of the commercial cannabis business.
(j) Display of Commercial Cannabis Permit, State License and City Business License. The original copy of the commercial cannabis permit issued by the City pursuant to this Chapter, the required State license, and the business license issued by the City pursuant to the Arvin Municipal Code shall be posted inside the commercial cannabis business in a location readily visible to the public.
(k) Criminal History Records Check.
1. Every owner of each commercial cannabis business must submit to annual fingerprint-based state and federal criminal history records checks, conducted by the City or another agency authorized or requested to do so by the City, as an application requirement in connection with each application for issuance or renewal of a commercial cannabis permit for the commercial cannabis business.
2. The criminal history records check may be conducted utilizing the California Department of Justice Live Scan system or any other system deemed necessary or appropriate in the discretion of the City Manager. The City Manager is authorized to request subsequent notification service, if Live Scan is used, or an equivalent service, if another system is used, sufficient to obtain ongoing notifications of criminal offenses committed by owners of commercial cannabis businesses. In the event the City Manager does so, and such subsequent notification or equivalent service reveals a conviction or other conduct, such a conviction or other conduct shall constitute grounds for immediate suspension or revocation of the subject commercial cannabis permit.
3. Owners and responsible persons shall be disqualified from involvement with a commercial cannabis business where the results of a criminal history records check would constitute grounds for denial.
4. A fee for the City's costs of conducting the criminal history records check, as established by resolution of the City Council, shall be paid at the time the application for a commercial cannabis permit is submitted. The fee may be established as a trust deposit for actual costs. The fee, or the initial trust deposit, shall be in an amount the City Manager estimates will cover the costs of conducting the criminal history records check, including City review and processing services and any third-party fees. If a trust deposit-based fee is established, it shall be used and drawn upon as a retainer to cover the actual costs of such investigation. If the initial trust deposit is not sufficient, the applicant shall provide additional amounts as necessary within thirty (30) days of a request from the City. If the applicant fails to do so, the investigation shall cease and shall not continue until such additional amounts are paid.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
5. In the alternative to subsection (k)(4) above, the commercial cannabis business or the subject owner, may provide the City Manager with a completed criminal history records check performed by a third-party vendor, as deemed necessary or appropriate in the discretion of the City Manager. If this alternative is used, the fee established pursuant to subsection (k)(4) above shall not apply, except as may be necessary for the City to confirm the validity and the results of the records check used.
(l) Upon completion of the investigation or in the event the applicant withdraws its application, any unused amount of any trust deposit made pursuant to this Chapter will be refunded to the applicant within thirty (30) days of request by the applicant. (m)Loitering. The owner and/or operator of a commercial cannabis business shall prohibit loitering on the premises of the commercial cannabis business. (n) Permits and other Approvals. Prior to the establishment or operation of any commercial cannabis business, the person intending to establish a commercial cannabis business must first obtain all applicable planning, zoning, building, and other applicable permits from the relevant governmental agency which may be applicable to the zoning district in which such commercial cannabis business intends to establish and to operate. (o) Greenhouses. Greenhouses may be utilized only for commercial cannabis cultivation businesses, including nurseries. Greenhouses used for cannabis cultivation shall be fully enclosed permanent structures with solid walls that are clad in an opaque material with climate control, such as heating and ventilation capabilities and supplemental artificial lighting, and that use a combination of natural and supplemental artificial lighting. The cultivation activities conducted within a greenhouse shall not be visible from any public right-of-way or adjacent private property. All greenhouses shall comply with the requirements of this Chapter and the Arvin Municipal Code, including the adopted requirements of the California Building Code, the California Fire Code and any other code adopted or incorporated by reference within the Arvin Municipal Code, as amended.
Greenhouse must have a minimum of 2,000 square feet.
(p) No commercial cannabis business may store food grade alcohol or any other volatile chemical, solvent or substance in an amount which exceeds the maximum authorized amount determined by the Fire Chief. Subject to the foregoing, use of food grade alcohol solely for the purposes of cleaning machinery and dissolving wax, unless otherwise prohibited by the State, is allowed.
(q) Commercial cannabis businesses shall comply with all pesticide use requirements of local, state and federal law.
(r) All weighing devices used by commercial cannabis businesses shall be maintained in compliance with local, state or federal law and applicable regulations regarding device registration with the Agricultural Commissioner.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(s) Commercial cannabis businesses shall comply with all applicable provisions of the California Building Standards Code, as adopted or incorporated into the Arvin Municipal Code.
(t) Commercial cannabis businesses shall comply with all local, state and federal laws and regulations and best practices applicable to storage and disposal of chemicals, solid waste, contaminants, hazardous materials, adulterated, deteriorated or excess cannabis and cannabis products, and all byproducts of the commercial cannabis business. (u) In no case shall any commercial cannabis business utilize any volatile solvents or other flammable, explosive or toxic substances to process or manufacture cannabis products in the City, except as expressly authorized pursuant to both a Type 7 State license and a Cityissued commercial cannabis permit. (v) All food products, food storage facilities, food-related utensils, equipment and materials shall be approved, used, managed and handled in accordance to the provisions of the California Retail Food Code, California Health and Safety Code Sections 113700 through 114437. All food products shall be protected from contamination at all times, and all food handlers must be clean, in good health and free from communicable diseases. (w)All cannabis and cannabis products, prior to leaving any licensed premises for transfer to any retailer, shall be properly labeled and placed in resealable, tamper-evident, childresistant packaging, shall include a unique identifier for the purposes of identifying and tracking cannabis and cannabis products, and shall otherwise comply with applicable State laws, including Business and Professions Code Section 26120, and applicable State regulations, all as may be amended from time to time.
(x) The premises of all commercial cannabis businesses shall have sufficient lighting such that all areas subject to monitoring by the security surveillance camera system shall be always visible to all cameras of the system.
Section 8.29.05.250 - Operating Requirements for Cultivation Businesses and Nurseries. (a) Outdoor commercial cultivation and outdoor nursery activity is prohibited. (b) If a commercial cannabis business includes nursery activities, only one nursery may be located on the premises of the commercial cannabis business, and the nursery activity must be permitted pursuant to this Chapter and State law.
(c) Cannabis cultivation and nursery activity shall be conducted in accordance with state and local laws related to land conversion, grading, electricity, water usage, water quality, woodland and riparian habitat protection, agricultural discharges, and similar matters. (d) Pesticides and fertilizers shall be properly labeled and stored to avoid contamination through erosion, leakage or inadvertent damage from pests, rodents or other wildlife.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(e) In no case shall any hazardous, flammable or explosive substances be used to process or manufacture cannabis products on site, except as otherwise stated in this Chapter pertaining to food grade alcohol.
(f) The cultivation of cannabis and any nursery activity shall at all times be operated in such a way as to ensure the health, safety, and welfare of the public, the employees working at the commercial cannabis business, visitors to the area, neighboring properties, and the end users of the cannabis being cultivated, to protect the environment from harm to streams, fish, and wildlife; to ensure the security of the cannabis being cultivated; and to safeguard against the diversion of cannabis.
(g) Stacking shall be allowed in a given structure only to the point that measuring the total canopy of each level of stacking is cumulatively no greater than the maximum canopy size allowed under State laws or regulations applicable to the State cultivation license held by the commercial cannabis business
(h) All applicants for a commercial cannabis permit for cultivation or nursery activity shall submit the following, which shall be subject to approval by the City Manager prior to issuance of a commercial cannabis permit to the applicant, in addition to the information otherwise required for a commercial cannabis permit application:
1. An operations plan that meets or exceeds minimum legal standards for water usage, conservation and use; drainage, runoff, and erosion control; watershed and habitat protection; and proper storage of fertilizers, pesticides, and other regulated products to be used on the parcel, proper disposal of waste materials, and a description of the nursery or cultivation activities and schedule of activities during each month of growing and harvesting, or explanation of growth cycles and anticipated harvesting schedules for all-season harvesting.
2. A description of a legal water source, irrigation plan, and projected water use.
3. Identification of the source of electrical power and plan for compliance with applicable Building Codes and related codes.
4. Plan for addressing odor and other public nuisances which may result from the nursery or cultivation site.
Section 8.29.05.260 Cannabis Manufacturing Business Operating Requirements. (a) Manufacturer 1 (Type 6) permittees shall utilize only manufacturing processes that are either solventless or that employ only nonflammable, nontoxic solvents that are generally recognized as safe pursuant to the federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.).
(b) Manufacturer 2 (Type 7) permittees shall utilize only manufacturing processes that use solvents exclusively within a closed-loop system that meets all of the following requirements:
1. The system uses only solvents that are generally recognized as safe pursuant to the federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.).
2. The system is designed to recapture and contain solvents during the manufacturing process, and otherwise prevent the off-gassing of solvents into the ambient
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atmosphere to mitigate the risks of ignition and explosion during the manufacturing process.
3. A licensed engineer certifies that the system is commercially manufactured, safe for its intended use, and built to codes of recognized and generally accepted good engineering practices, including, but not limited to, the American Society of Mechanical Engineers (ASME), the American National Standards Institute (ANSI), Underwriters Laboratories (UL), the American Society for Testing and Materials (ASTM), or OSHA Nationally Recognized Testing Laboratories (NRTLs).
4. The system has a certification document that contains the signature and stamp of a professional engineer and the serial number of the extraction unit being certified. (c) No compressed gases used in the manufacturing process shall be stored on the premises of any manufacturer in excess of the amount authorized by the Fire Chief (d) No manufacturer may engage in the retail sale, by delivery or otherwise, of any manufactured cannabis products, including edible cannabis products, on a retail basis in the City.
(e) All cannabis products shall be properly packaged and labeled in accordance with Business & Professions Code Section 26120 and applicable State regulations before leaving the commercial cannabis manufacturing business. All edible cannabis products must be in an opaque (non-see-through) package.
(f) Manufacturers shall comply with all applicable federal, State and local laws and regulations relating to manufacturing safety procedures.
Section 8.29.05.270 - Cannabis Testing Laboratory Operating Requirements. (a) Commercial cannabis testing laboratories (e.g. businesses requiring a Type 8 State license) shall comply with all applicable federal, state and local laws, regulations and/or guidelines governing testing procedures and safety measures.
(b) Testing laboratories are prohibited from obtaining permits to engage in any commercial cannabis activity, except testing. A commercial cannabis business which holds a commercial cannabis permit for testing shall not be issued or hold any other commercial cannabis permit.
(c) Testing laboratories shall not employ any individual who is also employed by any other State licensee that does not hold a Type 8 State license. (d) Testing laboratories must be accredited by an accrediting body that is independent from all other persons involved in commercial cannabis activity, and must provide proof of said accreditation, to the satisfaction of the City Manager, as a prerequisite to obtaining a commercial cannabis permit authorizing testing of cannabis or cannabis products.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
Section 8.29.05.280 - Cannabis Retail/Delivery Businesses Operating Requirements (a) Retail sales of cannabis and cannabis products in the City shall be conducted by delivery only.
(b) All commercial cannabis businesses conducting deliveries shall have permitted premises in the City from which all deliveries to addresses in the City or outside of the City shall be conducted. Commercial cannabis businesses that do not have physical premises located in the City, and/or that propose to deliver into the City from premises outside the City, shall not be eligible for issuance of a commercial cannabis permit, and are prohibited from conducting deliveries in the City.
(c) The premises of all commercial cannabis businesses that are permitted to conduct deliveries shall be closed to the general public at all times and shall be accessible only to employees and persons with a bona fide business or regulatory purpose for accessing the premises.
(d) In accordance with Business & Professions Code Section 26070.1, cannabis or cannabis products purchased by a customer shall not leave the permitted premises of a retailer unless they are placed in an opaque package. Lake i
(e) Retailers shall not accept, possess, or sell cannabis or cannabis products that are not packaged and labeled as they will be sold at final sale and in accordance with Business & Professions Code Section 26120, as may be amended. Retailers shall not package or label cannabis or cannabis products.
(f) No employee or other person acting on behalf of a commercial cannabis operation permitted to conduct deliveries may possess or deliver more than $3,000 worth of cannabis or cannabis products at any given time.
(g) No delivery shall be made to any person other than the person who requested the delivery, except when the person requesting the delivery is a qualified patient and the person receiving the delivery is his or her primary caregiver, or vice versa. (h) Any person who is present on the permitted premises of a commercial cannabis business permitted to conduct deliveries who is not an employee, officer, agent, or representative of the retailer must sign in and wear a "visitor" identification badge at all times while on the premises.
(i) Proof of the required State license and commercial cannabis permit, and a copy of all requests/orders for deliveries being conducted, shall be carried at all times in all vehicles being used to make deliveries, and shall be immediately available upon request from law enforcement officers.
(j) Deliveries shall not be conducted between the hours of 11:00 p.m. and 7:00 a.m.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
Section 8.29.05.290 - Total Area Devoted to Commercial Cannabis Businesses (a) No more than one million, three hundred fifty thousand (1,350,000) square feet of area shall be permitted for use by commercial cannabis businesses in the City. Notwithstanding the foregoing, land annexed into the City after the date of enactment of this Chapter shall not be subject to, nor shall be counted toward, this restriction. (b) The square footage of premises of each permitted commercial cannabis business shall be a minimum of 2,000 square feet in area. A coexisting, Commercial Cannabis business, subtenant, may be located, with the City Manager or designee’s approval or conditional approval, in a building area of less than 2,000 square feet where the Commercial Cannabis business is in conjunction with another approved Commercial Cannabis activity permitted in a building larger than 2,000 square feet.
(c) Accessory Structures in Support of Commercial Cannabis Businesses may, at the City Manager’s or designee approval or conditional approval, be authorized. The ratio of 1:1 square footage (Accessory Structure vs Commercial Cannabis Business) shall not exceed 25,000 square feet. (Example: Commercial Cannabis Business with 25,000 square feet may be authorized to have up to 25,000 square feet of Accessory Structures). All Accessory Structures shall be affixed to concrete foundations and must conform to the California Building Code (CBC), California Electrical Code (CEC) and American Mechanical Code (AMC). Accessory structures shall meet the requirements of Section 8.029.05.080 Security Measures and must have exterior lights around all four sides or appropriate detached lighting as approved by the City. Accessory structure(s) may be less than the minimum square footage as established in 8.029.05.290 (b). Accessory Structures shall be screened from public view – design of screening shall be at the discretion of the City Manager or designee. Accessory Structures square footage shall be included as established by Section 8.029.05.290 Total Area Devoted to Commercial Cannabis Businesses.
Section 8.29.05.300 - Periodic Review by the City Council.
Upon request of the City Manager, the City Attorney and the Chief of Police shall report to the City Council with findings on the operation of any commercial cannabis business permitted pursuant to this Chapter and a recommendation as to whether the business should be permitted to continue operating for the remaining period of its commercial cannabis permit (in addition to whatever other recommendations may be made) and whether the City should renew the permit upon application for renewal. Any termination or revocation of a permit based on such findings shall be in accordance with the provisions of this Chapter.
Section 8.29.05.310 - Promulgation of Regulations and Standards.
The City Manager, in his or her discretion, is authorized to promulgate reasonable regulations as he or she deems necessary to implement procedures or requirements in furtherance of the purposes of this Chapter. Regulations promulgated by the City Manager shall have the same force and effect of law and shall become effective upon the date of approval and execution of such regulations by the City Manager.
Section 8.29.05.320 - Community Relations.
(a) Each commercial cannabis business shall provide the City Manager with the name, telephone number, and email address of a community relations contact to whom notice of problems associated with the commercial cannabis business can be provided.
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Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
(b) The owner, manager, and community relations representative of a commercial cannabis permit holder operating in the City shall, upon request of the City Manager, meet to discuss costs, benefits, and other community issues resulting from implementation or application of this Chapter.
Section 8.29.05.330 - Unpaid Fees Deemed Debt to City.
The amount of any unpaid fee, cost or charge imposed pursuant to this Chapter shall be deemed a civil debt to the City that is recoverable in any court of competent jurisdiction.
Section 8.29.05.340 - Permit Holder Responsible for Violations.
Commercial cannabis permit holders shall be responsible for all violations of State or local laws or regulations, whether or not committed by the permit holder or any employee or agent of the permit holder, which occur in or on the premises of the commercial cannabis business, whether or not said violations occur within the permit holder's presence.
Section 8.29.05.350 – Effect on Other Ordinances
Except as designated in this chapter, the provisions of this chapter shall control for regulation of commercial cannabis businesses as defined herein if other provisions of the code conflict therewith. This chapter shall not, however, relieve any person of his or her duty to comply with such laws if additional obligations, duties, or prohibitions are imposed thereby.
Section 8.29.05.360 – Unlawful Businesses Prohibited
In no event shall any business license be granted for any use or activity that is illegal or unlawful under federal, state or city laws or regulations. No business license issued hereunder shall be construed as authorizing the conduct of or continuance of any illegal or unlawful business, or the furnishing, sale or provisioning of any service, good or product that is illegal under this code, the laws of the State of California, or the laws of the United States of America. Notwithstanding the foregoing, a business license may be granted for businesses permitted under this chapter, provided the applicant has complied with all provisions of this code and state law.
ORDINANCE AMENDING TITLE 2 ADMINISTRATION AND PERSONEL, CHAPTER
2.24 PLANNING COMMISSION, SECTION 2.24.030 DUTIES AS FOLLOWS:
Section 2.24.030 – Duties
The planning commission shall exercise all duties established by the laws of the state relating to city planning commissions, with the exception of those duties that have been expressly withheld from the planning commission in the City of Arvin's Municipal Code and such additional duties as may be prescribed by the city council.
SECTION 4. Severability. If any section, subsection, 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, in that the invalid provision shall be deemed severed from the ordinance and the balance shall remain in effect. The City Council hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion
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thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions thereof may be declared invalid or unconstitutional.
SECTION 5. Arvin Municipal Code Section 8.29 relating to sign regulations on private property, which existed prior to the date of adoption of Ordinance No. XXX, remains in full force and effect.
SECTION 6: This Ordinance shall take effect thirty (30) calendar days after its adoption.
Within fifteen (15) calendar days after its adoption, the Ordinance, or a summary of the Ordinance, shall be published once in a newspaper of general circulation.
I HEREBY CERTIFY that the foregoing Ordinance was introduced by the City Council after waiving reading, except by Title, at a regular meeting thereof held on the 08 th day of March
2022, and adopted the Ordinance after the second reading at a regular meeting held on the 22nd day of March 2022, by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST
CITY OF ARVIN CECILIA VELA, City Clerk
By:
OLIVIA TRUJILLO, Mayor
APPROVED AS TO FORM:
By:
NATHAN HODGES, City Attorney
Hodges Law Group
I, , City Clerk of the City of Arvin, California,
DO HEREBY CERTIFY that the foregoing is a true and accurate copy of the Ordinance passed and adopted by the City Council of the City of Arvin on the date and by the vote indicated herein.
5.A.2
Attachment: Ordinance Amend Titles 2 and Title 8 re Commerical Cannabis_032222 (Public Hearing - Second Reading & Adoption - Ordinance
CITY OF ARVIN
Staff Report
Meeting Date: March 22, 2022
TO: Arvin City Council
FROM: Jeff Jones, Interim City Manager / Finance Director SUBJECT: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARVIN,
CALIFORNIA, APPROVING AN EMPLOYMENT AGREEMENT WITH
JEFF JONES AS CITY MANAGER/FINANCE DIRECTOR.
BACKGROUND:
This matter is before the Council for consideration of approval of an employment Agreement for the services of City Manager. On March 22, 2022, the City Council announced their selection of Jeff Jones as City Manager and Finance Director. The proposed update will ensure continued City Manager services and the performance of the duties of the office in a manner which serves the best interests of City, subject to the direction of the City Council. The agreement proposes, amongst other terms, the following:
• Term: Expires March 22nd, 2026.
• Compensation: Annual Salary of $175,000 annually. Performance reviews will be held at least annually; Mr. Jones will be eligible for any performance bonuses as determined by the Council.
• Employee shall simultaneously service as the City’s Finance Director at no additional compensation.
• COLA: Effective at the conclusion of each year of the contract, either three percent or the current Los Angeles/Long Beach CPI for the prior year, whichever is greater. • Severance: Year 1-3: $175,000.00 and payment of health benefits for 1 year; year 4:
$14,583.33 times the number of months remaining in the Agreement plus health benefits for 1 year; waiver of claims, etc.
• Prior Agreements: All prior employment agreements are rescinded.
FISCAL IMPACT: The City Manager position is fully funded in the Fiscal Year 2021-22 budget. The City’s general fund will achieve substantial benefit from salary savings in future years as Mr. Jones will serve as both City Manager and Finance Director.
RECOMMENDATION: Staff recommends approval of the Resolution and Employment Agreement between the City of Arvin and Jeff Jones with an effective date of March 22, 2022 and authorize the Mayor to execute the agreement on behalf of the City.
Attachment: Resolution of the City Council of the City of Arvin, California, Approving an Employment Agreement with Jeff Jones as City Manager/Finance Director.
6.A.1
Attachment: 1. City Manager Contract Staff Report [Revision 1] (Employment Agreement with Jeff Jones as City Manager/Finance Director)
Reso Approving Agreement with Jeff Jones for City Manager Services.
RESOLUTION NO. ___________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARVIN,
CALIFORNIA, APPROVING AN EMPLOYMENT AGREEMENT WITH
JEFF JONES AS CITY MANAGER/FINANCE DIRECTOR.
WHEREAS, Arvin Municipal Code section 2.06.010 creates and establishes the office of the City Manager and provides that the City Manager shall be appointed by the City Council wholly on the basis of his administrative and executive ability and qualifications, and shall hold office for and during the pleasure of the City Council of the City of Arvin; and WHEREAS, under Municipal Code section 2.06.210 the City Council and its members do hereby express the desire to deal with the administrative services of the City through the City Manager; and
WHEREAS, under the Powers and Duties of Arvin Municipal Code section 2.06.070 the City Manager is the administrative head of the government of the City under the direction and control of the City Council, responsible for the efficient administration of all affairs of the City which are under his control; and
WHEREAS, the City Manager position in the City of Arvin has been vacant since May 28, 2021, and through its professional services recruitment firm Municipal Solutions, the Council has been actively recruiting for the position since the prior City Manager’s departure; and WHEREAS, Jeff Jones (“Mr. Jones”) has served as the Finance Director of the City of Arvin since October, 2017; and
WHEREAS, during the vacancy of the City Manager position, Mr. Jones served as the Acting City Manager and currently serves as the Interim City Manager pursuant to Resolution 2021-40; and
WHEREAS, during the time Mr. Jones has served as the Acting and Interim City Manager he has also simultaneously continued to serve as Finance Director; and WHEREAS, Mr. Jones possesses the experience, qualifications, knowledge, skills and abilities to serve as the permanent City Manager; and;
WHEREAS, the City Council wishes to hire Mr. Jones as the permanent City Manager; and
WHEREAS, hiring Mr. Jones as the City Manager will create a vacancy in the position of Finance Director; and
WHEREAS, Mr. Jones has agreed to serve simultaneously as the City Manager and Finance Director without additional compensation; and
WHEREAS, according to Arvin Municipal Code Section 206.060-Compensation, the City Manager shall receive such compensation and expense allowance as the City Council shall from time to time determine, and the compensation and expenses shall be a proper charge against such funds of the City as the City Council shall designate; and WHEREAS, the Employment Agreement attached as Exhibit “A” sets forth the terms and conditions of employment with Mr. Jones to perform the duties of City Manager effective March 22, 2022, while simultaneously acting as Finance Director for the duration of the contract period.
6.A.2
Attachment: 2. City Manager Reso 3.22 (Employment Agreement with Jeff Jones as City Manager/Finance Director)
Reso Approving Agreement with Jeff Jones for City Manager Services.
WHEREAS, the City Council desires to set the terms and conditions of Mr. Jones’ services as City Manager and Finance Director, subject always to the direction of the City Council.
NOW THEREFORE, be it resolved by the City Council of the City of Arvin as follows:
1. The recitals above are true and correct and incorporated herein by this reference.
2. The City Council hereby approves and adopts the Employment Agreement with Mr.
Jones, attached hereto as Exhibit “A,” and authorizes the Mayor to execute the same on behalf of the City of Arvin.
I HEREBY CERTIFY that the foregoing resolution was passed and adopted by the City Council of the City of Arvin at a regular meeting thereof held on the 22nd day of March 2022 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST
CECILIA VELA, City Clerk
CITY OF ARVIN
By:
OLIVIA TRUJILLO, Mayor
APPROVED AS TO FORM:
By:
NATHAN HODGES, City Attorney
Hodges Law Group
Exhibit A – Employment Agreement
Exhibit B – City Manager Job Description
Exhibit C – Finance Director Job Description
Exhibit D – Draft Severance Agreement
I, ______________________________, City Clerk of the City of Arvin, California, DO HEREBY CERTIFY that the foregoing is a true and accurate copy of the Resolution passed and adopted by the City Council of the City of Arvin on the date and by the vote indicated herein.
6.A.2
Attachment: 2. City Manager Reso 3.22 (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
AGREEMENT NO. _______
CITY MANAGER EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is made and entered into and effective on the 22nd day of March, 2022, by and between the City of Arvin (“City”), a California municipal corporation, and Jeff Jones (“Employee” or “Jones”). City and Employee are sometimes referred to in this Agreement individually as “Party” and collectively as “Parties.”
RECITALS
WHEREAS, Jones has served as the City of Arvin’s Finance Director since 2017; and WHEREAS, Jones has served as Acting, and Interim City Manager of the City of Arvin since the 1st day of June, 2021; and
WHEREAS, during the period of June 1, 2021, to the present, Jones continued to serve as the Finance Director while serving as the Acting and Interim City Manager; and WHEREAS, Jones has demonstrated the knowledge, skills and abilities to serve as City Manager, and possesses the qualifications of a permanent City Manager under the criteria established by the City Council during City Manager recruitment; and WHEREAS, the City Council now wishes to appoint Jones as the City Manager and continue the employment of Jones as the Finance Director; and WHEREAS, the position of City Manager is an “at will” position, not subject to the City’s personnel rules; and
WHEREAS, it is in the City’s best interests to continue the employment of Jones as Finance Director, and additionally as the City Manager, subject always to the direction of the City Council.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth hereinafter, the Parties mutually agree as follows:
AGREEMENT
1. Incorporation. The Parties incorporate the foregoing recitals as if fully set forth herein verbatim.
2. Hire. City acknowledges that it appointing and/or hiring Jones as City Manager effective March 22, 2022, and is thereafter appointing and/or hiring Jones as its Finance Director effective March 22, 2022 (“Effective Date”) pursuant to the terms and conditions of this Agreement. Jones shall remain in the exclusive hire of City during the term of this Agreement and shall neither accept other employment nor become employed by any other employer until the end of the Term or earlier termination of this Agreement.
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
3. “At-Will” Employment. Jones acknowledges he is employed at the pleasure of the City Council and is thus an at-will employee. The terms of the City’s personnel rules, policies, procedures, ordinances, or resolutions (collectively “Personnel Policies”) shall not apply to Employee unless made expressly applicable to Employee. Nothing in this Agreement is intended to, or does, confer upon Employee any right to any property interest in continued employment, or any due process property right to a hearing before or after a decision by the City Council to terminate his employment. Nothing contained in this Agreement shall in any way prevent, limit, or otherwise interfere with the right of the City to terminate the services of Employee as provided in Section 7 of this Agreement. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of Employee to resign at any time from this position with City, subject only to the provisions set forth in Section 7 of this Agreement.
4. Duties.
A. Finance Director. Employee accepts employment with the City as its Finance Director and agrees to perform all functions, duties and services set forth in Arvin Municipal Code Chapter 2.06.150, City regulations and procedures, the Finance Director job description (Exhibit “A”), and each of them currently or may in the future exist. Such duties include, but not limited to the following:
i. Plan, organize, control and direct City-wide accounting and budgetary operations and activities including the review, evaluation, maintenance and adjustment of funds, budgets, fixed/assets, contracts, capital projects and accounts; assure fiscal activities comply with established laws, codes, regulations, internal controls, standards, requirements, policies and procedures.
ii. Coordinate and direct personnel, communications and record-keeping functions to meet City accounting needs and assure smooth and efficient fiscal activities; oversee the development and implementation of accounting programs, projects, internal controls, functions, goals, objectives and activities; assure proper and timely resolution of accounting issues, errors and discrepancies; keep the City Manager, City Council and City staff current regarding budgets, transfers, income and expenditures as appropriate.
iii. Plan, organize, control and direct the monitoring, evaluation and reconciliation of City accounts, funds and budgets; coordinate, audit and direct the calculation, posting and adjustment of general ledger journal entries; coordinate, direct and approve accounting transactions such as purchase requisitions, bank stop-payment requests, check orders and requests; review, code and approve invoices for various departments. iv. Develop and prepare the annual City budget; collaborate with Department personnel and other administrators in the development and preparation of budgets for other departments; analyze and review related budgetary and financial data; control and authorize expenditures in accordance with established limitations; prepare revenue and expenditure projections; analyze financial data and prepare related forecasts and recommendations.
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
v. Plan, organize, control and direct financial record-keeping, reporting and related auditing functions to assure accurate and timely accounting and reporting of City funds and accounts; direct and participate in the review and analysis of financial statements, records and reports to assure compliance with established guidelines, procedures and Generally Accepted Accounting Principles.
vi. Provide oversight of cash collection, deposits and investments including the review an approval of bank accounts reconciliations and review; assist with building permit fee calculations.
vii. Assist with grant applications, tracking and distribution of grant funds; assure proper review and approval of grant applications. viii. Direct the preparation and maintenance of a variety of narrative, financial and statistical records, reports and statements related to accounts, funds, budgets, revenue, expenditures, reconciliations and assigned duties; assure mandated reports are submitted to appropriate personnel or governmental agency according to established time lines.
ix. Provide technical information and assistance to various administrators concerning accounting and budgetary activities, needs and issues; assist in the formulation and development of policies, procedures and programs. x. Perform related duties as required.
B. City Manager. Employee accepts employment with the City as its Interim City Manager and agrees to perform all functions, duties and services set forth in Arvin Municipal Code Chapter 2.06, City regulations and procedures, the City Manager job description (Exhibit “B”), and each of them currently or may in the future exist.
Such duties include, but not limited to the following:
• Advise CITY on all issues and activities related to city management; • Perform all duties typical of a city manager in a general law city manager run government;
• Enforce and faithfully observe all franchises, contracts, privileges, and permits granted by the City Council;
• Exercise authority over heads of departments, subordinate officers and employees, except the city attorney and other positions specified by state or local law;
• Conduct studies and recommend to the City Council administrative reorganization as needed;
• Recommend ordinances and the adoption of measures for the benefit of the City to the City Council;
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
• Attend all meetings of the City Council;
• Prepare and submit the proposed annual budget and the proposed annual salary plan to the City Council;
• Provide reports to City Council relating to city expenditures; • Make investigations into the affairs of the city and any department or division thereof, ensure proper performance of city contracts, and investigate all complaints relating to city administration;
• Exercise general supervision over all public places and public property under the control and jurisdiction of the City Council;
• Cooperate with all City Agencies, Boards and Commissions and attend meetings as necessary;
• Be available to the City Council Members, City Attorney, Department Heads, and staff members, by email and telephone, during normal business hours five (5) days per week (Monday-Friday), in emergency situations, and as required by City staffing and Council needs; and
• Perform all tasks and duties as deemed necessary by the City Council as also discussed in the Recitals above.
At the option of City, Jones shall serve as the Executive Director of or a representative toa any other authority or agency created by or studded by the City. Jones shall exercise such other powers and perform such other duties as the City, by the City Council, may from time-to-time assign.
Jones shall devote his full energies, interests, abilities, and productive time to the performance of this Agreement, and utilize his best efforts to promote City’s interests.
Jones shall not engage in any activity, consulting service or enterprise, for compensation or otherwise (together “Outside Employment”), which is actually or potentially in conflict with or inimical to, or which materially interferes with, his duties and responsibilities to the City. Additionally, Jones shall not undertake any Outside Employment except with the consent of the City Council.
5. Term. Except as hereinafter described, the term of this Agreement shall be for four (4) years commencing on the Effective Date.
6. Salary and Benefits. Jones’ salary and other benefits for all work or services called for under this Agreement shall be as follows:
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
A. Salary. Commencing on the Effective Date, Jones’ annual salary shall be one hundred seventy-five thousand dollars ($175,000.00), which shall be paid according to the payroll schedule in place for City Employees. Jones shall be entitled to a three percent (3%) Cost of Living Adjustment (“COLA”), or the annual cost of living index for the Los Angeles-Long Beach Metropolitan area, whichever is greater during each year of this Agreement. Any salary increases in addition to COLA shall be implemented by written amendment to this Agreement and upon approval by the City Council.
The compensation set forth in this section shall be Employee’s total compensation under this Agreement, and Employee shall not be eligible for any other benefits or compensation not specifically provided for in this Agreement.
The positions of City Manager and Finance Director are exempt under the Fair Labor Standards Act and, therefore, no overtime pay will be paid to Jones based on hours worked.
B. Paid Time Off (“PTO”). Employee shall accrue 13.71 hours of Paid Time Off per pay period during the term of this Agreement. Any accrued but unused PTO earned by Employee prior to the execution of this Agreement shall be carried forward and included in the calculation of total PTO. PTO shall be used for all absences including sick leave, vacation, management leave, and personal business.
As Finance Director, Jones’ PTO cap was 340 hours. Prior to entering into the Interim City Manager Employment Agreement, because Employee has accrued the maximum number of hours he was allotted as Finance Director, Employee had lost, or not accrued,
27.61 hours of PTO. As additional consideration for accepting the Interim City Manager Position, City agreed to increase Jones’ maximum accrual to 600 hours during the pendency of the Interim City Manager Employment Agreement, allow the 27.61 hours to immediately accrue, and upon termination and/or expiration of that Agreement, City agreed to pay Jones for all PTO accrued beyond the 340-hour accrual limit and reduce Jones’ Accrued PTO to 340 hours.
As additional consideration for accepting the City Manager Position and Finance Director Position, City agrees to the following:
Increase the maximum accrual to 800 hours and allow for cash-outs of accrued PTO at any time as long as a minimum bank of 160 hours exists after said cashout.
C. Holiday and Other Leaves. Jones shall receive the same leaves, holidays, and other time off as provided to other managers at the City.
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
D. Employee Benefits. City agrees to provide Employee with health, dental and vision insurance benefits. City shall pay all premiums for Employee and Employee’s Dependents’ coverage as provided herein.
E. Term Life Insurance. The City shall pay the premiums for a 10-year term life insurance policy in the amount of $300,000.00. Jones shall name the beneficiary of the life insurance policy, provided said beneficiary has and maintains an insurable interest in Jones.
F. Vehicle. City agrees to pay to Employee, during the term of this Agreement, the total sum of four hundred dollars ($400.00) per month, as a vehicle allowance to be used to lease, own, operate and maintain a vehicle. Employee shall be responsible for paying for liability, property damage, and comprehensive insurance coverage upon such vehicle and shall be responsible for all expenses relating to the ownership, operation, maintenance, repair, and regular replacement of said vehicle.
G. Cell Phone. City shall pay Jones a maximum of $150.00 per month to be used to purchase and pay the monthly premium for a cell phone, which shall be used to conduct official city business. Jones acknowledges that use of the City provided cell phone, or his personal cell phone, for City business may be subject such usage to disclosure under the California Public Records Act.
H. Laptop. City shall provide Jones with a laptop to use during his employment. Jones shall return the laptop when he ceases his employment with the City. The laptop shall be used exclusively for City business.
I. Public Employees’ Retirement System (Pers) And Social Security. City shall pay its share and Jones’ share of the payment due to PERS during the term of this Agreement. City and Jones shall each pay one half of the payments due to social security during the term of this Agreement.
J. Professional Development. City shall pay the professional dues for three (3) professional organizations, which are necessary and desirable for Jones’ continued professional participation, growth, enhancement or for the good of the City. Subject to the prior approval of the City Council, City shall budget and pay the attendance for Jones’ attendance at two (2) professional organization conferences annually. City shall allow attendance at other conferences identified by Jones that may benefit the City or enhance his development and growth so long as the City Council approves of the leave in advance.
K. Expenses. City shall reimburse Employee for all reasonable out-of-pocket expenses incurred while performing the duties described in this Agreement, which may include travel, meals and lodging expenses, mileage at current IRS rate, and parking fees.
Employee shall submit a receipt and a description of the expenses to the City’s Finance
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
Department within (30) days of the date each expense incurred as a condition of obtaining reimbursement.
Because Employee is also the City’s Finance Director, prior to City reimbursing Employee, the City Council shall review and have discretion to approve all requested reimbursements.
7. Termination. Jones’ “at-will” employment as Finance Director and/or City Manager may be terminated as follows:
A. Resignation. If Jones elects to resign at any time during the term of this Agreement, he may do so upon giving City thirty (30) days’ written notice. Termination pursuant to such action shall occur thirty (30) calendar days after service of said notice, or on such other date as may be agreed to by the Parties.
B. Retirement. If Jones elects to retire, he shall inform City, in writing, at least thirty (30) days prior to the effective date of such retirement. City shall cooperate fully with Employee to provide all information in a timely manner.
C. Termination “Without Cause” from Finance Director Position. City reserves the right to terminate this Agreement and Employee’s employment as Finance Director at any time at the will, discretion and pleasure of the City Council upon providing Jones with thirty (30) days written notice. City’s only obligation in the event of such termination will be payment to Employee of all compensation then due and owing as set forth in Section 2.1 up to and including the effective date of termination. However, this Agreement may be terminated immediately if necessitated by changes to statutory or regulatory requirements, or if doing so will preclude a violation of State, Federal or local law.
D. Termination “Without Cause” from City Manager Position. City reserves the right to terminate this Agreement and Employee's employment as City Manager at any time, “without cause” upon thirty (30) days written notice pursuant to Arvin Municipal Code section 2.06.250, except as limited by Arvin Municipal Code section 2.06.280, which states:
“Notwithstanding the provisions of this article, proceedings for removal of the city manager shall not be instituted other than for cause, during or within a period of ninety (90) days next succeeding any general municipal election held in the city at which election a member of the city council is elected. The purpose of this provision is to allow any newly elected member of the city council or a reorganized city council to observe the actions and ability of the city manager in the performance of the powers and duties of his office. After the expiration of the ninety (90) day period aforementioned, the provisions of Article IV as to the removal of the city manager shall apply and be effective.”
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
E. Termination “With Cause.” The City reserves the right to terminate this Agreement and Jones’ employment from one, or both positions, at any time, “with cause.” “Cause” shall include, but not be limited to:
i. Theft, or attempted theft, financial mismanagement, material dishonesty, willful or persistent breach of duties, engaging in conduct tending to bring embarrassment or disrepute to the City, unauthorized or excessive absences. ii. A formal investigation commissioned by the City Council and conducted by a third-party investigator hired by the City Council in which the City Council has determined that the Employee has engaged in unlawful discrimination or harassment of Employees or any third party while on City Premises or on City time. City is not required to wait until Employee has exhausted any appeal rights prior to terminating this Agreement “for cause.” iii. Conviction of any felony, or for any misdemeanor involving moral turpitude, corruption or dishonesty. “Conviction” shall include any guilty plea, plea of nolo contendre, or any other disposition other than a dismissal of charges or acquittal. City is not required to wait until Employee has exhausted any appeal rights prior to terminating this Agreement “for cause.” iv. Jones’ death.
v. Jones’ permanent disability if such disability precludes Jones from performing his essential job duties for more than six (6) cumulative months after attempts at a reasonable accommodation pursuant to the Americans with Disabilities Act and/or California’s Fair Employment & Housing Act have been made.
F. No Notice for Expiration. Nothing in this Section 7 shall be construed to require either party to give advance written notice in order for the Agreement to expire as set forth in Section 5.
G. Termination Obligations. Jones agrees that all property, including, without limitation, all equipment, Confidential Information (as defined below), documents, records, notes, contracts, and computer-generated materials furnished to or prepared by him incident to his employment belongs to City and shall be returned promptly to City upon termination of Jones’ employment. Jones’ obligations under this subsection shall survive the termination of his employment and the expiration of this Agreement.
i. Confidential Information. “Confidential Information” shall include, but not be limited to, all information or material that Jones learns of or obtains during his employment with City that is or was confidential or privileged by virtue of it having been discussed or presented in a duly-noticed closed session meeting of the City Council, or otherwise privileged and/or
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
confidential under applicable law, including but not limited to personnel information, information pertaining to on-going or potential litigation, information learned in the context of the attorney-client relationship with the City Attorney or special counsel to the City. Confidential Information as defined includes, but is not limited to, all data, materials, products, technology, computer programs, specifications, manuals, business plans, software, marketing plans, financial information, internal processes and procedures, and other information disclosed or submitted, orally, in writing, or by any other media, to Employee by City. Nothing herein shall require City to disclose any of its information to Employee. During his employment with City as Interim City Manager, Employee shall use and disclose Confidential Information only for the benefit of City and as is, or may be, necessary to perform his job responsibilities under this Agreement.
Following the termination of this Agreement, Employee shall not use or disclose any Confidential Information, except with the express written consent of City. Jones’ obligations under this Section shall survive the termination of his employment and the expiration of this Agreement.
H. Severance. In the event that Jones is terminated “Without Cause,” he shall be entitled to severance pay as follows:
i. Year 1 – 3 of the Agreement:
1. $175,000.00.
2. Premium Payments for one (1) year of health, dental and vision insurance, at the same level Jones was provided during his employment.
ii. Year 4 of the Agreement:
1. $14,583.33 x number of months remaining in the Agreement.
2. Premium Payments for one (1) year of health, dental and vision insurance, at the same level Jones was provided during his employment.
The severance pay will be in addition to pay accrued, but not remitted, prior to the notice of termination, and any accrued PTO. The severance rights provided in this Paragraph 7(H) shall constitute the sole and only entitlement of Employee with respect to severance pay in the event of the termination other than for cause or by expiration of this Agreement. Jones expressly waives any and all other rights with respect to severance pay except as provided herein, including any and all rights he may have to a separation payment pursuant to any joint powers insurance authority memorandum of liability coverage then in effect. Any and all severance rights are conditioned upon and in consideration for execution of the Standard “Agreement of Separation, Severance, and General Release” attached hereto in form only as Exhibit “C.”
8. Bonding and Indemnification. City shall bear the full costs of any fidelity or other bond required of Jones under any law or ordinance. City shall defend, save harmless and indemnify Jones from any and all demands, claims, suits, actions, or other legal
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
proceedings (“Claims”) brought against him in his individual capacity or in his official capacity as City Manager or Finance Director, provided the Claims arise while Jones is acting within the scope of his employment and provided he did not act or fail to act because of actual fraud, corruption or malice. The provision shall not extend to claims brought by City itself or where indemnity is otherwise prohibited by law.
9. Performance Evaluation. City Council shall evaluate Jones at least one (1) time each year during the pendency of this Agreement. The City Council, with Jones’ input, will develop the criteria upon which Jones will be evaluated. The City Council shall have the right to establish the format and the forms to be used. Jones shall be responsible for initiating the evaluation. The City Council may conduct more frequent performance evaluations at their discretion.
10. Notices. Notices pursuant to this Agreement shall be deemed to be given when personally delivered to the party to whom directed or when deposited in the United States Mail, postage prepaid, and addressed as follows:
City Jones
Mayor, City of Arvin Jeff Jones
200 Campus Drive On File with Human Resources
Arvin, California 93203
Either party may change his or its address by providing written notice to the other party in the manner described herein.
11. General Provisions.
A. Entire Agreement. This Agreement constitutes the complete understanding between the Parties, is fully integrated, and supersedes all prior agreements – including the Parties’ Interim City Manager Employment Agreement – promises, representations, or inducements, no matter their form, concerning the subject matter of this Agreement.
No subsequent agreements, promises, representations, or inducements will be binding unless recorded in a written document, which specifically references this Agreement and is signed by the Parties or their authorized representatives. The Parties acknowledge that this Agreement may be used as evidence in any subsequent proceeding in which either Party alleges a breach of this Agreement or seeks to enforce its terms, provisions, obligations, or as compelled by law.
B. Captions. The headings used in this Agreement are inserted for reference purposes only and shall not be deemed to limit or affect in any way the meaning or interpretation of any of the terms or provisions of this Agreement.
C. Severability. If any provision contained in this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
shall be deemed severable and shall not be affected thereby and same shall remain in full force and effect.
D. Amendment. This Agreement may not be amended except in a written document signed by Employee, approved by the City Council and signed by the City’s Mayor.
E. Assignment. Employee shall not assign any rights or obligations under this Agreement, nor any interest in it. City may, upon prior written notice to Employee, assign its rights and obligations hereunder.
F. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action or motion to enforce the terms or conditions of this Agreement shall be brought only in the Superior Court of California for the County of Kern.
G. Waiver. Waiver by any party of any breach of this Agreement by the other party, whether such waiver be direct or implied, shall not be construed as a continuing waiver or consent to any subsequent breach of this Agreement on the part of the other party.
H. Attorneys’ Fees. If either party commences any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement against the other party, the prevailing party, in such action or proceeding, shall be entitled to recover reasonable attorneys’ fees, costs, and all other litigation costs.
I. Counterparts. This Agreement may be executed in counterparts and the respective signature pages for each party may thereafter be attached to the body of this Agreement to constitute one integrated Agreement which is as fully effective and binding as if the entire document had been signed at one time.
J. Acknowledgement of Statutes That May Affect Employment Relationship. City and Employee acknowledge that, in addition to the statutes previously referenced in this Agreement, the following statutes shall govern this employment relationship under the circumstances described in the statutes:
a. Government Code section 53243 states that on or after January 1, 2012, any contract executed or renewed between a local agency, such as the City, and an officer or Employee of a local agency, such as Jones, that provides paid leave salary offered by the local agency to the officer or Employee pending an investigation shall require that any salary provided for that purpose be fully reimbursed if the officer or Employee is convicted of a crime involving an abuse of his or her office or position.
b. Government Code section 53243.1 states that on or after January 1, 2012, any contract executed or renewed between a local agency, such as the City, and an officer or Employee of a local agency, such as Employee that provides funds for
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
the legal criminal defense of an officer or Employee shall require that any funds provided for that purpose be fully reimbursed to the local agency if the officer or Employee is convicted of a crime involving an abuse of his or her office or position. c. Government Code section 53243.3 states that on or after January 1, 2012, if a local agency, such as the City, provides, in the absence of a contractual obligation, for any of the payments described in the corresponding article of the Government Code, then the Employee or officer, such as Employee, receiving any payments provided for those purposes shall fully reimburse the local agency that provided those payments in the event that the Employee or officer is convicted of a crime involving the abuse of his or her office or position.
d. Government Code sections 87100 et seq., section 1090 and section 1126, and all other similar statutory and administrative rules, prohibit conflicts of interest.
During the term of this Agreement, Jones shall comply with all those requirements of law, and shall not engage in any business or transaction or maintain a financial interest which conflicts, or reasonably might be expected to conflict, with the proper discharge of Employee's duties under this Agreement.
Jones represents that he has reviewed, is familiar with, and agrees to comply fully with each of these provisions if any of these provisions are applicable to him, including that Employee agrees that any cash settlement or severance related to a termination that Employee may receive from City shall be fully reimbursed to the local agency if Employee is convicted of a crime involving an abuse of Employee's office or position.
K. Independent Legal Advice. City and Jones represent and warrant to each other that each has received legal advice from independent and separate legal counsel with respect to the legal effect of this Agreement or had the opportunity to do so and City and Jones further represent and warrant that each has carefully reviewed this entire Agreement and that each term thereof is understood and that the terms of this Agreement are contractual and not a mere recital. This Agreement shall not be construed against the Party or its representatives who drafted it or who drafted any portion thereof. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Each party waives their future right to claim, contest or assert that this Agreement was modified, cancelled superseded or changed by any oral agreement, course of conduct, waiver or estoppel.
L. Further Assurances. Each party shall execute and deliver such papers, documents, and instruments, and perform such acts as are necessary or appropriate, to implement the terms of this Agreement and the intent of the parties to this Agreement.
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
M. Binding Effect. The rights and obligations of this Agreement shall inure to the benefit of, and be binding upon, the parties to the contract and their heirs, administrators, executors, personal representatives, successors and assigns, and whenever the context so requires, the masculine gender and includes the feminine and neuter, and the singular number includes the plural. This Agreement may be executed in any number of counterparts, each of which shall be considered as an original and be effective as such.
N. Non-Interest. With the exception of Employee, no officer or employee of the City shall hold any interest in this Agreement (California Government Code section 1090). [Signature Page Follows]
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, City has caused this Agreement to be signed and executed on its behalf by its Mayor and duly attested to by its City Clerk, and Employee has signed and executed this Agreement, as of the date written below.
Dated: CITY OF ARVIN
By:
Olivia Trujillo, Mayor
Dated: EMPLOYEE
By:
Jeff Jones
ATTEST:
By:
CECILIA VELA
APPROVED AS TO FORM:
By:
NATHAN M. HODGES, ESQ.
City Attorney
Attachments:
Exhibit “A”: Finance Director Job Description
Exhibit “B”: City Manager Job Description
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director)
CITY MANAGER/FINANCE DIRECTOR EMPLOYMENT AGREEMENT
Exhibit “C”: Agreement of Separation, Severance, and General Release
6.A.3
Attachment: 3. 3.9.2022.CIty Manager Employment Agreement (Employment Agreement with Jeff Jones as City Manager/Finance Director) City of Arvin
CITY MANAGER
DEPARTMENT: ADMINISTRATION
FLSA STATUS: EXEMPT
UNIT: UNREPRESENTED
GRADE:
JOB SUMMARY
Under policy direction, acts for the City Council in planning, directing, coordinating, and reviewing the activities and operations of the departments and appointed officers of the municipal government; to provide professional leadership in the management of the City and execution of City policies; to provide effective municipal services through the coordination and direction of all City activities, finances and personnel; and to provide administrative support to the City Council and City departments.
DISTINGUISHING CHARATERISTICS
The City Manager is appointed by the City Council and serves as the Chief Executive of Arvin’s municipal government.
SUPERVISION RECEIVED AND EXERCISED
Receives policy direction from the City Council. Exercises supervision, either directly or through subordinate supervisors, over assigned management, supervisory, professional, technical, and administrative support personnel.
EXAMPLE OF ESSENTIAL FUNCTIONS (Illustrative only)
• Acts as Chief Executive Officer of the City.
• Prepares and submits to the City Council annual reports of financial and administrative activities; keeps the City Council advised of financial conditions, program progress, and present and future needs of the City.
• Develops, plans, and implements, with Council participation, City goals and objectives as well as policies and procedures necessary to provide municipal services; approves new or modified programs, systems, administrative/personnel policies, and procedures. • Directs the development, presentation, and administration of the City budget; prepares and oversees the financial forecast of funding needed for staffing, equipment, materials, and supplies; monitors revenues and expenditures; make midyear adjustments. • Prepares agenda for and attends meetings of the City Council; assesses the needs of the community, advises the City Council, and recommends suitable measures. • Conducts continuous research in administrative practices and recommends to the City Council those practices which will produce greater efficiency and economy in City government.
• Appoints, trains, motivates, and evaluates employees; establishes performance objectives; prepares and presents employee performance reviews; implements discipline procedures;
6.A.4
Attachment: 4. City Manager job description (Employment Agreement with Jeff Jones as City Manager/Finance Director) City Manager
recommends employee terminations; hears and rules on employee appeals of disciplinary actions.
• Directs and confers with department heads concerning administrative and operational problems; makes appropriate decisions or recommendations for City Council adoption. • Oversees the enforcement of all City ordinances; monitors all contractual agreements with franchises and contractors; oversees the procurement and purchase of all supplies and equipment for all City departments.
• Supervises the operation of such administrative services as the Council may determine shall be rendered centrally.
• Represents the City Council as assigned in relationships with other governmental agencies. • Prepares a long-term plan of capital improvements with plans for their financing. • Administratively directs the activities of the City Clerk. • Regular and timely attendance.
• Performs other duties, as required.
MINIMUM QUALIFICATIONS
Sufficient experience and education to demonstrate the knowledge and skills listed and to perform the essential duties is required. A typical way of obtaining the required qualifications is:
Education:
Equivalent to a four (4) year degree from an accredited college or university in Public Administration, Planning, Business Administration, Public Finance, Law, or other closely related field; Master’s Degree preferred.
Experience:
Seven (7) years of progressively responsible experience in municipal government including three (3) years as a department head or Assistant City Manager.
Licenses and Certificates:
• Valid California driver's license and satisfactory driving record.
Knowledge of:
• Modern and highly complex principles and practices of municipal government administration, departments, organization and economic development functions and services.
• Current social, political, and economic trends and operating problems of municipal government.
• The history, functions, and goals of municipal governments. • Pertinent federal, state and local laws, codes, and regulations. • Principles and practices of municipal budget preparation and administration. • Principles of effective public relations and interrelationships with community groups and agencies, private businesses and firms and other levels of government. • Principles and practices of program development and administration.
6.A.4
Attachment: 4. City Manager job description (Employment Agreement with Jeff Jones as City Manager/Finance Director) City Manager
• Government, council, and local and state legislative processes. • Organizational and management practices as applied to the analysis and evaluation of City programs, policies, and operational needs.
• Methods and techniques for goal setting and program evaluation. • Principles of supervision, training, and performance evaluation. • Techniques for providing a high level of customer service to the public and City staff, in person and over the telephone.
Ability to:
• Develop and administer City-wide goals, objectives, policies, procedures, work standards, and internal controls.
• Provide effective leadership and coordinate the activities of the municipal organization. • Serve effectively as the administrative agent of the City Council. • Analyze, interpret, summarize and present administrative and technical information and data in an effective manner.
• Assess situations, exercise sound judgment and take appropriate action, remaining cognizant of the City’s confidentiality requirement and the City’s public relations policy. • Identify and respond to sensitive community, organizational, and City Council issues, concerns, and needs.
• Respond to inquiries or complaints and explain regulations and procedures to the public, members of the business community, and representatives of other agencies and organizations.
• Select, supervise, and evaluate assigned staff.
• Interpret and apply federal, state, and local policies, laws, and regulations. • Develop, prepare, and administer a large municipal budget. • Communicate clearly and concisely, both orally and in writing. • Use a computer to generate reports and presentations, office correspondence including email, and special documents. • Prepare clear and concise administrative, staff, and financial reports. • Gain cooperation through discussion and persuasion.
• Demonstrate tact and diplomacy with the public.
• Establish and maintain cooperative working relationships with City Council members, staff, committee members, public officials, business leaders and the public.
WORKING CONDITIONS
The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.
Work is performed primarily indoors in an air-conditioned office environment with natural and fluorescent lighting and moderate noise level. There may be some travel to different sites and incumbents may be required to work extended hours including evenings and weekends and may be required to travel outside City boundaries to attend meetings. Position requires
6.A.4
Attachment: 4. City Manager job description (Employment Agreement with Jeff Jones as City Manager/Finance Director) City Manager
prolonged sitting, standing, walking; and occasional kneeling, squatting and stooping in the performance of daily activities. While performing the duties of this job, the employee is regularly exposed to video display terminals. The position also requires repetitive hand movement and fine coordination in data entry and preparing reports using a computer keyboard. Specific vision abilities required by this job include close vision, distance vision, color vision, peripheral vision, depth perception, and ability to adjust focus. Acute hearing is required when providing phone and personal service. The employee must regularly lift and/or move up to 10 pounds and occasionally lift and/or move up to 35 pounds.
HISTORY
Approved by:
Date:
6.A.4
Attachment: 4. City Manager job description (Employment Agreement with Jeff Jones as City Manager/Finance Director) City Manager
Page5 of 5
6.A.4
Attachment: 4. City Manager job description (Employment Agreement with Jeff Jones as City Manager/Finance Director) City of Arvin
FINANCE DIRECTOR
DEPARTMENT: FINANCE DEPARTMENT
FLSA STATUS: EXEMPT
UNIT: UNREPRESENTED, DEPARTMENT HEAD
GRADE:
JOB SUMMARY:
Under administrative direction, directs all activities of the Finance Department including planning, organizing, directing, coordinating, and reviewing the activities and operations of the department including Accounting, Treasury, Purchasing, Property Management, Information Technology, and Transportation; acts as Treasurer for the Redevelopment Agency; provides professional leadership in the financial management of the City and execution of City financial policies.
DISTINGUISHING CHARATERISTIC
The Finance Director is a department head classification with overall responsibility for the activities of the Finance Department. The incumbent is accountable, through subordinate managers and supervisors, for accomplishing all department goals, and for furthering City goals and objectives within general policy guidelines.
SUPERVISION RECEIVED AND EXERCISED
Receives policy direction from the City Manager. Exercises supervision, either directly or through subordinate supervisors, over assigned management, supervisory, professional, technical, and administrative support personnel.
EXAMPLES OF ESSENTIAL FUNCTIONS (Illustrative only)
• Acts as Chief Financial Officer of the City.
• Develop, plan and implement department goals and objectives; recommend and administer policies and procedures.
• Coordinate Department activities with those of other departments and outside agencies and organizations; provide staff assistance to the City Manager and City Council; prepare and present staff reports and other necessary correspondence. • Direct, oversee and participate in the development of the Department's work plan; assign work activities, projects, and programs; monitor work flow; review and evaluate work products, methods, and procedures.
• Supervise and participate in the development and administration of the City and Finance Department’s annual operating budget and capital improvement budget; direct the forecast of additional funds needed for staffing, equipment, materials, and supplies; monitor and approve expenditures; implement mid-year adjustments.
6.A.5
Attachment: 5. Finance Director job description (Employment Agreement with Jeff Jones as City Manager/Finance Director) Finance Director
• Develop and implement long and short-term strategic plans in support of department and City-wide goals and objectives.
• Oversee the preparation of documentation related to the refinancing of existing debt and the issuance of new debt; direct the preparation of financial reports as required by law; prepare various financial reports and analyses requested by the City Manager and City Council. • Review, evaluate and recommend improvements to the City's administrative and financial internal control systems and procedures and ensure audit compliance. • Direct the design, implementation, and control of automated financial systems. • Oversee the general accounting functions of the City; provide financial support and assistance to City departments; ensure compliance with internal controls and standard accounting practices.
• Select, train, motivate and evaluate personnel; provide or coordinate staff training; conduct performance evaluations; implement discipline procedures; maintain discipline and high standards necessary for the efficient and professional operation of the Department. • Represent the Department to outside groups and organizations; participate in outside community and professional groups and committees; provide technical assistance as necessary.
• Research and prepare technical and administrative reports and studies; prepare written correspondence as necessary.
• Regular and timely attendance.
• Performs other duties, as required.
MINIMUM QUALIFICATIONS
Sufficient experience and education to demonstrate the knowledge and skills listed and to perform the essential duties is required. A typical way of obtaining the required qualifications is:
Education:
Equivalent to a four (4) year degree from an accredited college or university in public or business administration, finance, accounting, or a related field, including a minimum of twentyfour (24) semester units of accounting.
Experience:
Five (5) years of experience in a responsible financial capacity involving responsibility for the planning, organizing, and execution of a varied financial program in governmental accounting and financial reporting.
Licenses and Certificates:
Valid California driver’s license and a satisfactory driving record.
Knowledge of:
• Generally accepted accounting principles and financial reporting for various transaction types.
6.A.5
Attachment: 5. Finance Director job description (Employment Agreement with Jeff Jones as City Manager/Finance Director) Finance Director
• Principles and practices of internal control procedures and practices as they apply to a public agency.
• Principles and methods of finance administration, particularly in the areas of accounting, budgeting, auditing, purchasing, central stores, treasury, utility billing, business license and customer service.
• California public agency financial practices, revenue sources and reporting. • Principles and practices of public administration, management, and organizational theories. • Principles and practices of leadership, motivation, team building and conflict resolution. • Pertinent local, state and federal laws, rules, and regulations. • Organizational and management practices as applied to the analysis and evaluation of programs, policies, and operational needs.
• Recent court decisions and how they affect department operations. • Techniques for providing a high level of customer service to the public and City staff, in person and over the telephone.
Ability to:
• Plan, direct and control the administration and operations of the Finance department. • Interpret and apply Federal, State, local and department policies, procedures, laws and regulations.
• Develop and install sound accounting and related financial systems and procedures. Prepare complex financial, budgetary, and technical statements, reports, and analyses. • interpret and evaluate staff report and related documents • Respond to inquiries or complaints and explain regulations and procedures to the public, members of the business community, and representatives of other agencies and organizations.
• Select, supervise, and evaluate assigned staff.
• Develop and implement department policies and procedures. • Gain cooperation through discussion and persuasion.
• Successfully develop, control and administer departmental budget and expenditures. • Analyze problems, identify alternative solutions, project consequences of proposed actions and implement recommendations in support of goals.
• Assess situations, exercise sound judgment and take appropriate action, remaining cognizant of the City's confidentiality requirement and the City's public relations policy. • Identify and respond to public and City Council issues and concerns. • Communicate clearly and concisely, both orally and in writing. • Provide high quality customer service.
• Establish and maintain effective working relationships with those contacted in the course of the work.
WORKING CONDITIONS
6.A.5
Attachment: 5. Finance Director job description (Employment Agreement with Jeff Jones as City Manager/Finance Director) Finance Director
The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.
Work is performed primarily indoors in an air-conditioned office environment with natural and fluorescent lighting and moderate noise level. There may be some travel to different sites and incumbents may be required to work extended hours including evenings and weekends and may be required to travel outside City boundaries to attend meetings. Position requires prolonged sitting, standing, walking; and occasional kneeling, squatting and stooping in the performance of daily activities. While performing the duties of this job, the employee is regularly exposed to video display terminals. The position also requires repetitive hand movement and fine coordination in data entry and preparing reports using a computer keyboard. Specific vision abilities required by this job include close vision, distance vision, color vision, peripheral vision, depth perception, and ability to adjust focus. Acute hearing is required when providing phone and personal service. The employee must regularly lift and/or move up to 10 pounds and occasionally lift and/or move up to 35 pounds.
HISTORY
Approved by:
Date:
6.A.5
Attachment: 5. Finance Director job description (Employment Agreement with Jeff Jones as City Manager/Finance Director)
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
1. PARTIES
This Agreement of Separation, Severance, and General Release (hereinafter referred to as the “Agreement”) is entered into effective this ___ day of ___________, _____ by and between the City of Arvin, a municipal corporation (“'City” herein), and Jeff Jones (“Employee” herein).
2. RECITALS
2.1 Employee was hired by the City as an at-will City Manager effective on or about _______________, serving at the pleasure of the of the City Council of the City pursuant to a written Employment Agreement, a copy of which is attached hereto as Exhibit “A” (“Employment Agreement”). Employee is currently ___ years old.
2.2 On or about,________ Employee provided the City with a letter of resignation, wherein Employee informed the City of his intent to resign. Thereafter, on or about ______________, the City’s Council met to discuss Employee’s resignation letter.
Pursuant to the Employee’s resignation letter, The City and Employee desire that Employee separate from employment with the City and enter into this Agreement whereby Employee receives severance compensation in exchange for executing a general release and waiver of any and all claims that Employee may have against the City, including but not limited to, its elected and non-elected officials, Employees, attorneys, and agents. Accordingly, the parties hereto intend by this Agreement to mutually conclude any and all employment relationships between the City and Employee by means of Employee's separation as City Manager and Finance Director as of the ____ day of _________ 20__. This Agreement sets forth the full and complete terms and conditions concluding Employee's employment relationship with the City and any obligations related thereto, including any provided under the Employment Agreement.
2.3 In accordance with this Agreement and with applicable state and federal laws, Employee acknowledges that Employee has been advised of Employee’s post-employment rights, including but not limited to, Employee’s rights under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Employee Retirement Income Security Act of 1974 (“ERISA”), and the Health Insurance Portability and Accountability Act of 1996 (" HIPAA"), and of his rights under the Age Discrimination in Employment Act, and the Older Workers Benefit Protection Act.
3. CONSIDERATION
3.1 Employee shall receive payment to him at the time of his voluntary separation all earned salary, accrued fringe benefits as detailed in the Employment Agreement, and/or all other wage compensation/benefits owed to Employee upon separation of employment, as required by state, federal or municipal law or any other Agreement with the City.
6.A.6
Attachment: 6. draft .Agreement of Separation, Severance and General Release (Employment Agreement with Jeff Jones as City
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE
3.2 In exchange for the waivers and releases set forth herein, the City shall cause to be paid to Employee an additional compensatory payment as severance pay by means of a lump sum payment of ________________ ($__________), as set forth in in the form of a check made payable to Employee to be mailed to Employee at Employee’s home address via certified mail return receipt requested within thirty (30) business days after the Effective Date (as defined below) of this Agreement. The lump sum payment shall be subject to applicable state and federal withholdings as determined appropriate by the City. Additionally, the City shall cause to be paid to Employee an amount equal to the Premium Payments for one (1) year of health, dental and vision insurance, at the same level Employee was provided during his employment.
3.3 In exchange for the severance payment provided for herein, Employee, and on behalf of Employee’s Spouse, heirs, representatives, successors, and assigns, hereby releases, acquits, and forever discharges the City, and each of its predecessors, successors, assigns, officials, employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through, under, or in concert with any of them, and such of them (hereinafter referred to as “the City Parties”), from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, Agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which Employee now has or may acquire in the future, or which Employee ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at any time from the beginning of time up to and including the effective date of this Agreement (hereinafter referred to collectively as “Claims”), without regard to whether such Claims arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law. Employee expressly acknowledges that the Claims forever barred by this Agreement specifically include, but are not limited to, claims based upon any alleged breach of the contract or any other Agreement of employment, any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIP AA, any alleged breach of any duty arising out of contract or tort, any alleged wrongful termination in violation of public policy, any alleged breach of any express or implied contract for continued employment, any alleged employment discrimination or unlawful discriminatory act or any claim or cause of action including but not limited · to, any and all claims whether arising under any federal, state or local law prohibiting breach of employment contract, wrongful termination, or employment discrimination based upon age, race, color, sex, religion, handicap or disability, national origin or any other protected category or characteristic, and any and all rights or claims arising under the California Labor Code or Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the California Fair Employment and Housing Act, California Government Code§§ 12, 900 et seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Public Safety Officers Procedural Bill of Right Act, and any other federal, state, or local human rights, civil rights, or employment discrimination or Employee rights statute, rule, or regulation. Nothing herein shall be interpreted as a release or waiver of any workers’ compensation claims or in any way prohibit or prevent Employee from participating in any claims or administrative action brought by a state or federal agency.
6.A.6
Attachment: 6. draft .Agreement of Separation, Severance and General Release (Employment Agreement with Jeff Jones as City
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE Furthern1ore, nothing herein shall be interpreted as a release or waiver of the City’s statutory obligations relative to providing defense and indemnification of public Employees, if any, including but not limited to Government Code Sections 825-825.6 and Sections 995-996.6.
4. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA AND OWBPA
The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the “ADEA”') makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to the nature and privileges of an individual’s employment on the basis that the individual is age forty (40) or older. The Older Workers Benefit Protection Act (hereinafter referred to as the “OWBPA,” 29 U.S.C. § 626, et. seq., Pub L 101-433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of any right or claim under the ADEA, unless the waiver is knowing and voluntary. By entering into this Agreement, Employee acknowledges that Employee knowingly and voluntarily, for just compensation in addition to anything of value to which Employee was already entitled, waives, and releases any rights he may have under the ADEA and/or OWBPA. Employee further acknowledges that Employee has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that:
a) This waiver/release is written in a manner understood by Employee; b) Employee is aware of, and/or has been advised of, Employee’s rights under the ADEA and OWBPA, and of the legal significance of Employee’s waiver of any possible claims Employee currently may have under the ADEA, OWBPA and/or similar age discrimination laws;
c) Employee is entitled to a reasonable time of at least twenty-one (21) days within which to review and consider this Agreement and the waiver and release of any rights Employee may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the exercise of Employee's own discretion, sign or reject this Agreement at any time before the expiration of the twenty-one (21) days;
d) The waivers and releases set forth in this Agreement shall not apply to any rights or claims that may arise under the ADEA and/or OWBPA after the Effective Date of this Agreement;
e) Employee has been advised by this writing that Employee should consult with an attorney prior to executing this Agreement;
f) Employee has discussed this waiver and release with, and been advised with respect thereto by, Employee’s counsel of choice or at least had the opportunity to do so, and Employee represents by signing this Agreement that Employee does not need any additional time within which to review and consider this Agreement;
6.A.6
Attachment: 6. draft .Agreement of Separation, Severance and General Release (Employment Agreement with Jeff Jones as City
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE g) Employee has seven (7) days following Employee’s execution of this Agreement to revoke the Agreement;
h) Notice of revocation within the seven (7) day revocation period must be provided, in writing, to the City pursuant to Paragraph 8.9 herein, and must state, “I hereby revoke my acceptance of our Agreement of Severance and General Release;” and i) This Agreement shall not be effective until all parties have signed the Agreement and ten (10) days have passed since Employee's execution of same (“Effective Date”).
5. UNKNOWN CLAIMS
In relation to the release provisions of Paragraphs 3, and 4 above, Employee understands that California Civil Code section 1542 reads as follows:
“GENERAL RELEASE--CLAIMS EXTINGUISHED”
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.”
Employee hereby waives the protection of California Civil Code section 1542.
6. WAIVER OF ADDITIONAL CLAIMS
Employee hereby waives any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant to the provisions of Paragraphs 3, 4, and 5 above.
7. REPRESENTATIONS AND WARRANTIES
Each of the parties to this Agreement represents and warrants to, and agrees with, each other party as follows:
7.1 Advice of Counsel: The parties hereto have received independent legal advice from their respective attorneys concerning the advisability of entering into and executing this Agreement or have been given the opportunity to obtain such advice. The parties acknowledge that they have been represented by counsel of their own choice in the negotiation of this Agreement, that they have read this Agreement; that they have had this Agreement fully explained to them by such counsel or have had such opportunity to do so and that they are fully aware of the contents of this Agreement and of its legal effect.
7.2 No Fraud in Inducement: No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation or failed to make
6.A.6
Attachment: 6. draft .Agreement of Separation, Severance and General Release (Employment Agreement with Jeff Jones as City
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and neither party relies upon any statement, representation, omission or promise of any other party in executing this Agreement, or in making the settlement provided for herein, except as expressly stated in this Agreement.
7.3 Independent Investigation: Each party to this Agreement has made such investigation of the facts pertaining to this settlement and this Agreement and all the matters pertaining thereto, as it deems necessary.
7.4 Mistake Waived: In entering into this Agreement, each party assumes the risk of any misrepresentation, concealment, or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including without limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this Agreement. This Agreement is intended to be, and is, final and binding between the parties, regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law, or any other circumstance whatsoever.
7.5 Later Discovery: The parties are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties that Employee fully, finally, and forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist or have previously existed against the City or the City Parties. In furtherance of such intention, the releases given here shall be, and remain, in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto.
7.6 Indemnification: Employee agrees to indemnify and hold harmless the City or the City Parties from, and against, any and all claims, damages, or liabilities sustained by them as a direct result of the violation or breach of the covenants, warranties, and representations undertaken pursuant to the provisions of this Agreement. Employee understands and agrees that Employee shall be exclusively liable for the payment of all taxes for which Employee is responsible, if any, as a result of Employee's receipt of the consideration referred to in Paragraph 3 of this Agreement. In addition, Employee agrees fully to indemnify and hold the City Parties harmless for payment of tax obligations as may be required by any federal, state, or local taxing authority, at any time, as a result of the payment of the consideration set forth in Paragraph 3 of this Agreement.
7.7 Future Cooperation: Employee shall execute all such further and additional documents as shall be reasonable, convenient, necessary, or desirable to carry out the provisions of this Agreement.
7.8 Return of Confidential Information and Property: Prior to the separation all City keys, equipment, passwords, computer identification cards or codes, and other equipment or materials or confidential documents provided to or obtained by Employee during the course
6.A.6
Attachment: 6. draft .Agreement of Separation, Severance and General Release (Employment Agreement with Jeff Jones as City
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE of Employee’s employment with the City shall be provided by Employee to the Finance Director or designee.
7.9 No Pending Claims and/or Actions: Employee represents that Employee has not filed any complaints or charges against the City or the City Parties with any local, state or federal agency or court; that Employee will not do so at any time hereafter for any claim arising up to and including the Effective Date of this Agreement; and that if any such agency or court assumes jurisdiction of any such complaint or charge against the City or the City Parties on behalf of Employee, whenever or where ever filed, Employee will request such agency or court to withdraw from the matter forthwith. Nothing herein shall be interpreted as a release or waiver of any workers’ compensation claims or in any way prohibit or prevent Employee from participating in any claims or administrative action brought by a state or federal agency.
7.10 Ownership of Claims: Employee represents and warrants as a material term of this Agreement that Employee has not heretofore assigned, transferred, released, or granted, or purported to assign, transfer, release, or grant, any of the Claims disposed of by this Agreement. In executing this Agreement, Employee further warrants and represents that none of the Claims released by Employee thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity.
7.11 Enforcement Fees and Costs: Should any legal action be required to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief to which that party may be entitled.
7.12 Authority: Each party represents to the other that it has the right to enter into this Agreement, and that it is not violating the terms or conditions of any other Agreement to which they are a party or by which they are bound by entering into this Agreement. The parties represent that they will obtain all necessary approvals to execute this Agreement. It is further represented and agreed that the individuals signing this Agreement on behalf of the respective parties have actual authority to execute this Agreement and, by doing so, bind the party on whose behalf this Agreement has been signed.
7.13 Unemployment: Nothing in this Agreement shall limit Employee’s ability to apply for unemployment benefits.
8. MISCELLANEOUS
8.1 No Admission: Nothing contained herein shall be construed as an admission by the City of any liability of any kind. The City denies any liability in connection with any claim and intends hereby solely to avoid potential claims and/or litigation and buy its peace.
8.2 Governing Law: This Agreement has been executed and delivered within the State of California, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by, the laws of the State of California.
6.A.6
Attachment: 6. draft .Agreement of Separation, Severance and General Release (Employment Agreement with Jeff Jones as City
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE The Parties agree that the exclusive jurisdiction for any legal proceeding arising out of or relating to this Agreement shall be the Kern County Superior Court and all Parties hereby waive any challenge to personal jurisdiction or venue in that court.
8.3 Full Integration: This Agreement is the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written Agreements and discussions. This Agreement may be amended only by a further Agreement in writing, signed by the parties hereto.
8.4 Continuing Benefit: This Agreement is binding upon and shall inure to the benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials, attorneys, assigns, heirs, and successors in interest.
8.5 Joint Drafting: Each party agrees that it has cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the parties agree that same shall not be construed against any party.
8.6 Severability: In the event that any term, covenant, condition, provision, or Agreement contained in this Agreement is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or Agreement shall in no way affect any other term, covenant, condition, provision or Agreement and the remainder of this Agreement shall still be in full force and effect.
8.7 Titles: The titles included in this Agreement are for reference only and are not part of its terms, nor do they in any way modify the terms of this Agreement.
8.8 Counterparts: This Agreement may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all parties. Delivery of executed originals of this Agreement, as well as any instrument contemplated in connection with this Agreement, may be affected by facsimile and/or electronic transmission, and in such event, copies of executed originals so delivered may be used in place of, and shall have the same force and effect as, the executed originals.
8.9 Notice: Any and all notices given to any party under this Agreement shall be given as provided in this paragraph. All notices given to either party shall be made by certified or registered United States mail, or personal delivery, at the noticing party's discretion, and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to have been given and/or received on the date of personal service or three (3) consecutive calendar days following deposit of the same in the United States mail.
City: City Of Arvin
City Hall
200 Campus Drive
Arvin, California 93203
Employee: Jeff Jones
6.A.6
Attachment: 6. draft .Agreement of Separation, Severance and General Release (Employment Agreement with Jeff Jones as City
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE Address set forth in Employee's Personnel
File. If no address is in the Personnel File,
notice may be sent to Employee’s business or
home.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, the day and year first-above written.
Dated: “Employee”
By:
JEFF JONES
Dated: City of Arvin
By:
Name:
Title: Mayor
APPROVED AS TO FORM:
For City:
By:
Name:
Title: City Attorney
For Employee (if represented):
By:
6.A.6
Attachment: 6. draft .Agreement of Separation, Severance and General Release (Employment Agreement with Jeff Jones as City
AGREEMENT OF SEPARATION, SEVERANCE, AND GENERAL RELEASE Name:
Title:
6.A.6
Attachment: 6. draft .Agreement of Separation, Severance and General Release (Employment Agreement with Jeff Jones as City Staff Report – Kosmont Realty Proposal – Pre-Disposition Real Estate Advisory Services for Surplus Properties.
CITY OF ARVIN
Staff Report
Meeting Date: March 22, 2022
TO: Arvin City Council
FROM: Jeff Jones, Interim City Manager / Finance Director SUBJECT: Consideration and Approval of A Proposal between Kosmont Realty and the Successor Agency to the Arvin Community Redevelopment Agency and the City of Arvin for Pre-Disposition Real Estate Advisory/Due-diligence Services and Brokerage Services for Surplus Properties.
BACKGROUND:
At the April 27, 2021 City Council meeting, the Council approved Resolution No. 2021-27 and Exhibit A thereto, which listed ten (10) Successor-Agency Owned Real properties as surplus.
In compliance with the procedures set forth in the Surplus Land Act, Notice that the City intended to sell the surplus properties was sent on September 13, 2021 to the Department of Housing and Community Development (“HCD”), local public entities within the jurisdiction where the surplus land is located, and housing sponsors who had notified HCD of their interest in surplus land for developing affordable low- and moderate-income housing. (Gov. Code § 54222.) Because the City only received Written Notice of Interest related to one (1) surplus designated property within 60 days, the City may issue a Request for Proposal (“RFP”) to the general public in order to sell, lease, or transfer the other nine (9) Surplus Properties to a private individual or business. (Gov. Code § 54233.)
The City of Arvin issued a Request for Proposal (RFP) “Surplus Land Public Sale, Lease, or Exchange” to solicit proposals for the purchase of certain surplus properties. Proposals in response to the RFP were due on March 10, 2022. The City of Arvin received four (4) proposals in response to the RFP.
As the next step in this process, City staff has requested a draft proposal from Kosmont Realty (“KR”) to provide pre-sale/disposition real estate advisory/technical services to conduct initial pre-sale property due diligence for the subject ten (10) surplus properties (listed below), review/evaluation of proposals/offers submitted from SLA (Notice of Availability) and the Request for Proposal (RFP) solicitation processes and public-private negotiations regarding their future sale and disposition. KR will perform these advisory services as identified in the Scope of Services under Tasks 1-4 of the Proposal (attached).
Surplus Properties
1. Walnut and Fourth Street (APN: 190-260-06)
2. Bear Mtn Blvd near Walnut St (APN: 190-270-01)
3. Bear Mtn Blvd near Walnut St (APN: 190-270-03)
4. Bear Mtn Blvd near Walnut St (APN: 190-250-05)
5. Bear Mtn Blvd near Walnut St (APN: 190-270-06)
7.A.1
Attachment: Staff Report_Kosmont Realty_Proposal for Real Estate Advisory Services_032222 (Successor Agency & City: Kosmont Realty Staff Report – Kosmont Realty Proposal – Pre-Disposition Real Estate Advisory Services for Surplus Properties.
6. Bear Mtn Blvd near Walnut St (APN: 190-250-03)
7. Bear Mtn Blvd near Walnut St (APN: 190-250-04)
8. Bear Mtn Blvd near Walnut St (APN: 190-270-05)
9. 1541 Bear Mountain Blvd (APN: 191-010-01)
10. 816 Sycamore St (APN: 192-110-16)
To the extent that preferred buyer(s)/developer(s) are selected or positioned to go forward with a transaction, then pursuant to Task 5 in the Scope of Services, KR will provide real estate brokerage services in connection with the sale of the Properties including: structuring and negotiation of purchase agreement documentation; coordination of escrow, title, and ultimate sale; and other transaction based activities as may be required to close the transaction (as mutually agreed upon between KR and the Successor Agency/City of Arvin).
STAFF RECOMMENDATION:
Staff recommends approval of the Proposal between Kosmont Realty and the Successor Agency to the Arvin Community Redevelopment Agency and the City of Arvin for Pre-Disposition Real Estate Advisory/Due-diligence Services and Brokerage Services.
FINANCIAL IMPACT:
Compensation to KR for Tasks 1 through 4 is estimated at $25,000 for professional services (hourly) fees at KR’s billing rates show on Attachment A of the attached Proposal. Future increases in budget will request approval by the Successor Agency/City of Arvin in advance.
Compensation for Task 5 would consist of (1) the higher of six (6) percent commission of the gross sales price or independently appraised value or (2) a minimum commission amount of $60,000, whichever is greater. Compensation for Task 5 shall require City of Arvin/Successor Agency approval of Attachment B, which is an Exclusive Authorization to Sell Agreement by and between KR and the City of Arvin/Successor Agency and includes Exhibit A: Schedule of Commission, which in the aggregate comprise and are heretofore referred to as “Attachment B.” ATTACHMENTS:
Proposal between Kosmont Realty and the Successor Agency to the Arvin Community Redevelopment Agency and the City of Arvin for Pre-Disposition Real Estate Advisory/Duediligence Services and Brokerage Services.
7.A.1
Attachment: Staff Report_Kosmont Realty_Proposal for Real Estate Advisory Services_032222 (Successor Agency & City: Kosmont Realty Kosmont Realty
Mailing Address: 1601 N. Sepulveda Blvd., #382 (424) 297-1079 Physical Address: 1230 Rosecrans Ave., #630 Manhattan Beach, CA 90266 www.kosmontrealty.com Manhattan Beach, CA 90266 March 7, 2022
Jeffrey Jones
Interim City Manager
Finance Director
City of Arvin
200 Campus Dr.
Arvin, CA 93203
Re: Proposal for Pre-Disposition Real Estate Advisory/Due Diligence Services & Brokerage Services
Dear Mr. Jones,
Kosmont Real Estate Services (“KRES”) dba Kosmont Realty (“KR” or “Consultant”), a licensed California brokerage firm (Department of Real Estate License #02058445), (“Kosmont” or “KR” or “Broker”), is pleased to present this proposal to the Successor Agency to the Community Redevelopment Agency of the City of Arvin (“Successor Agency”) and the City of Arvin (“City”) (collectively referred to as “Client” or “Owner” or “Seller”) for pre-disposition real estate advisory/due-diligence services and brokerage services in connection with the future sale and disposition of ten properties in the City.
This proposal serves as an agreement (“Agreement”) when executed and returned by Client to KR.
I. BACKGROUND AND OBJECTIVE
The Client has requested that KR provide pre-sale/disposition real estate advisory/technical services to conduct initial pre-sale property due diligence for the subject properties (listed below) (collectively referred to as “Properties”), review/evaluation of proposals/offers submitted from SLA (Notice of Availability) and RFP solicitation processes and public-private negotiations regarding their future sale and disposition. KR will perform these advisory services as identified in the Scope of Services under Tasks 1-4.
To the extent that preferred buyer(s)/developer(s) are selected or positioned to go forward with a transaction, then pursuant to Task 5 in the Scope of Services, KR will provide real estate brokerage services in connection with the sale of the Properties including: structuring and negotiation of purchase agreement documentation; coordination of escrow, title, and ultimate sale; and other transaction based activities as may be required to close the transaction (as mutually agreed upon between KR and Client).
It is KR’s understanding that all the subject properties have complied with the Surplus Land Act process and Property #1 has received two letters of interest from two (2) developers and the remaining properties (Property #’s 2-10) are the subject of a separate Request for Proposal (“RFP”) with a deadline of March 10, 2022 for responses. The list of the properties is as follows:
DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 2 | Page
(424) 297-1079
www.kosmontrealty.com
1. Walnut and Fourth Street (APN: 190-260-06)
2. Bear Mtn Blvd near Walnut St (APN: 190-270-01)
3. Bear Mtn Blvd near Walnut St (APN: 190-270-03)
4. Bear Mtn Blvd near Walnut St (APN: 190-250-05)
5. Bear Mtn Blvd near Walnut St (APN: 190-270-06)
6. Bear Mtn Blvd near Walnut St (APN: 190-250-03)
7. Bear Mtn Blvd near Walnut St (APN: 190-250-04)
8. Bear Mtn Blvd near Walnut St (APN: 190-270-05)
9. 1541 Bear Mountain Blvd (APN: 191-010-01)
10. 816 Sycamore St (APN: 192-110-16)
The following scope of services outlines the specific tasks and assignments associated with the services described herein.
II. SCOPE OF SERVICES
Approach to Scope of Services: The prospective assignment and consulting services that KR will provide will be of a relatively limited scope and duration, and advisory in nature. KR will be making recommendations only, which advise the Client, including its elected officials, appointed officials and staff, which they can accept or reject. None of Kosmont's staff will act in a capacity as an elected official, nor appointed official, nor as staff, nor as serving in a "designated" position.
The major tasks to be performed by KR that will comprise this assignment are described as follows:
Task 1: Project Kick Off
To initiate the assignment, KR will meet with the Client to discuss planned future uses and/or development/disposition priorities for the Properties, available market/property specific information (e.g. appraisals, market studies, Long Range Property Management Plan, zoning information) and status of activities to date and anticipated timing.
Task 2: Initial Pre-Sale/Disposition Property Due Diligence and Regulatory Compliance Activities
KR will conduct initial pre-sale/disposition property due diligence to identify existing market conditions and constraints affecting the potential marketability, sale, and development (e.g., zoning, adjacent uses, site configuration, environmental condition) of the Properties as well as evaluate market value/pricing ranges, and potential options/approaches to productively advance the future sale and disposition of the Properties.
KR will also consider potential regulatory requirements in conjunction with the City Attorney’s office in connection with the sale and disposition of the Properties to satisfy compliance with dissolution statutes (e.g., Abx1 26, AB 1484, and SB 107 (collectively the “Dissolution Act”), Surplus Land Act, Government Code 52201, 33433, and/or others as may be appropriate/required.
DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 3 | Page
(424) 297-1079
www.kosmontrealty.com
Task 3: N.O.A. Respondent Due Diligence/Negotiations
KR will perform an initial review of the two (2) responses received as part of the Notice of Availability solicitation process required by the SLA for Property #1 in list identified herein. The SLA requires that the Client negotiate in good faith with respondents that submitted a notice of interest for a period of 90 days.
KR can assist with reviewing notices of interest, evaluating proposals/offers submitted, and/or publicprivate transaction structuring/negotiations as may be required with the respondents for the sale/disposition of Property #1. KR can also provide and assist the City with a presentation to the City Council/Successor Agency that will seek authorization to proceed with any prospective transactions (as mutually agreed upon between Client and KR).
Task 4: RFP Respondent Due Diligence/Public-Private Negotiations KR will preliminarily review the responses received as part of the RFP process (due March 10th) for market viability and other matters related to due diligence. KR can assist with an initial review/evaluation of proposals/offers submitted, and/or assist with public-private transaction structuring/negotiations as may be required with the respondents for the sale/disposition of Property #’s 2-10 in the list identified herein. Once KR has completed its initial review of responses, it will provide a recommendation to the Client in the form of an evaluation matrix (as may be appropriate). KR can also provide and assist the City with a presentation to the City Council/Successor Agency/Countywide Oversight Board (as may be required) that will seek authorization to proceed with any prospective transactions (as mutually agreed upon between Client and KR).
Task 5: Real Estate Brokerage Services
Kosmont Real Estate Services, dba Kosmont Realty (“KR”), will assist the Client with real estate brokerage services. KR is a full-service real estate brokerage licensed in the State of California (License # 02058445). KR will be paid for the following tasks by a real estate commission upon the close of any sales transaction for the Properties in accordance with the Exclusive Authorization to Sell in Attachment B to this proposal: Assistance with structuring and negotiation of purchase agreement documentation (e.g. price and terms); coordination with selected title and escrow company related to activities for the potential transactions to effectuate the sale(s); coordination with appraiser (as may be required); and/or other transaction based activities as may be required to close the various transaction(s) (as mutually agreed upon between KR and Client).
III. SCHEDULE AND REQUIRED DATA
Consultant is prepared to commence work upon receipt of executed Agreement. Client will provide KR with all existing project data including appraisals, property specific data, market data, and/or other relevant data deemed appropriate by KR.
IV. COMPENSATION
Compensation for Tasks 1 through 4 is estimated at $25,000 for professional services (hourly) fees at KR’s billing rates as shown on Attachment A. Future increases in budget will require approval by Client in advance. Budget may be increased by Client at any time.
Compensation for Task 5 would consist of (1) the higher of a six (6) percent commission of the gross sales price or independently appraised value or (2) a minimum commission amount of $60,000, DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 4 | Page
(424) 297-1079
www.kosmontrealty.com
whichever is greater. Compensation for Task 5 shall require Client approval of Attachment B, which is an Exclusive Authorization to Sell Agreement by and between KR and the Client and includes Exhibit A:
Schedule of Commission, which in the aggregate comprise and are heretofore referred to as “Attachment B.”
KR anticipates a single consolidated round of Client comments and revisions on draft work product before Kosmont provides a final version of work product. If necessary, additional rounds of comments and revisions can be accommodated on an hourly basis.
KR’s attendance or participation at any publicly noticed meeting, whether such participation is in person, digital, video and/or telephonic (e.g., City Council, Planning Commission, Public Agency Board, other), as requested by Client is in addition to compensation for Tasks 1 through 4 and will be billed at the professional services (hourly) fees as shown on Attachment A.
Services will be invoiced monthly at KR’s standard billing rates, as shown on Attachment A. In addition to professional services (hourly) fees, invoices will include reimbursement for out-of-pocket expenses such as travel and mileage. There shall be no overnight travel without the Client’s prior approval and that mileage shall be reimbursed at the current IRS mileage reimbursement rate), professional printing, conference calls, and delivery charges for messenger and overnight packages at actual cost. Unless otherwise agreed to in advance, out-of-area travel, if any, requires advance funding of flights and hotel accommodations.
KR will also include in each invoice an administrative services fee to cover in-house copy, fax, telephone and postage costs equal to four percent (4.0%) of KR’s monthly professional service fees incurred. Any unpaid invoices after 30 days shall accrue interest at the rate of 10% per annum.
For the convenience of Kosmont’s clients, we offer a secure credit card payment service. The credit card payment link is: https://kosmont.paidyet.com and there are two ways to make a secure credit card payment:
• Fill in the “Make a Payment” form when you go to the link (https://kosmont.paidyet.com), or • Call Kosmont Companies’ accounting desk (Ms. Charo Martinez; (424) 297-1072) to make a credit card payment
KR is prepared to commence work upon receipt of executed Agreement.
DISCLOSURE: Compensation for possible future transaction-based services or consulting services.
The following is being provided solely as an advance disclosure of possible real estate consulting and finance services and potential compensation for such services. This disclosure is not intended to commit the Client.
When assignments involve public finance services on behalf of a public agency, such municipal advisory services are provided by Kosmont Transactions Services, Inc. (“KTS”). KTS is registered with the DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 5 | Page
(424) 297-1079
www.kosmontrealty.com
Securities and Exchange Commission (CIK# 0001769359) and the Municipal Securities Rulemaking Board as a Municipal Advisor (ID# K1256).
SEC registration does not constitute an endorsement of the firm by the Commission or state securities regulators.
When assignments involve advisory services provided by Kosmont & Associates, Inc., dba Kosmont Companies (“KC”), a separate proposal and hourly rate sheet will be provided.
V. OTHER PROVISIONS
A. Termination. Client or Consultant shall have the right to terminate this Agreement at any time upon written notification to the other party. Payment for fees accrued through the date of termination shall be remitted in full.
B. Arbitration. Any controversy or claim arising out of or in relation to this Agreement, or the making, performance, interpretation or breach thereof, shall be settled by arbitration at JAMS in Los Angeles, California. Each of the parties to such arbitration proceeding shall be entitled to take up to five depositions with document requests. The provisions of Section 1283.05 (except subdivision (e) thereof) of the California Code of Civil Procedure are incorporated by reference herein, except to the extent they conflict with this Agreement, in which case this Agreement is controlling. If the matter is heard by only one arbitrator, such arbitrator shall be a member of the State Bar of California or a retired judge. If the matter is heard by an arbitration panel, at least one member of such panel shall be a member of the State Bar of California or a retired judge. The arbitrator or arbitrators shall decide all questions of law, and all mixed questions of law and fact, in accordance with the substantive law of the State of California to the end that all rights and defenses which either party may have asserted in a court of competent jurisdiction shall be fully available to such party in the arbitration proceeding contemplated hereby. The arbitrator and arbitrators shall set forth and deliver their findings of fact and conclusions of law with the delivery of the arbitration award. Judgment upon the award rendered shall be final and non-appealable and may be entered in any court having jurisdiction.
C. Attorneys' Fees. In the event of any legal action, arbitration, or proceeding arising out of an alleged breach of this Agreement, the party prevailing in such legal action, arbitration, or proceeding shall be entitled to recover reasonable attorneys' fees, expenses and costs, as well as all actual attorneys' fees, expenses and cost incurred in enforcing any judgment entered.
D. Authority. Each of the parties executing this Agreement warrants that persons duly authorized to bind each such party to its terms execute this Agreement.
E. Further Actions. The parties agree to execute such additional documents and take such further actions as may be necessary to carry out the provisions and intent of this Agreement.
F. Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party without the prior written consent of the other party.
DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 6 | Page
(424) 297-1079
www.kosmontrealty.com
G. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
H. Entire Agreement; Amendments and Waivers. This Agreement contains the entire agreement between the parties relating to the transactions contemplated hereby and any and all prior discussions, negotiations, commitments and understanding, whether written or oral, related hereto are superseded hereby. No addition or modification of any term or provision of this Agreement shall be effective unless set forth in writing signed by both parties. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver of such provisions unless otherwise expressly provided. Each party to this Agreement has participated in its drafting and, therefore, ambiguities in this Agreement will not be construed against any party to this Agreement.
I. Severability. If any term or provision of this Agreement shall be deemed invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining term and provision of this Agreement shall be valid and in force to the fullest extent permitted by law.
J. Notices. All notices, requests, demands and other communications which may be required under this Agreement shall be in writing and shall be deemed to have been received when transmitted; if personally delivered, if transmitted by telecopier, electronic or digital transmission method, upon transmission; if sent by next day delivery to a domestic address by a recognized overnight delivery service (e.g., Federal Express), the day after it is sent; and if sent by certified or registered mail, return receipt requested, upon receipt. In each case, notice shall be sent to the principal place of business of the respective party. Either party may change its address by giving written notice thereof to the other in accordance with the provisions of this paragraph.
K. Titles and Captions. Titles and captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision herein.
L. Governing Law. The statutory, administrative and judicial law of the State of California (without reference to choice of law provisions of California law) shall govern the execution and performance of this Agreement.
M. Confidentiality. Each of the parties agrees not to disclose this Agreement or any information concerning this Agreement to any persons or entities, other than to their attorneys and accountants, or as otherwise may be required by law.
N. Counterparts. This Agreement may be executed in one or more counterparts, each of which constitutes an original, and all of which together constitute one and the same instrument. The signature of any person on a telecopy of this Agreement, or any notice, action or consent taken pursuant to this Agreement shall have the same full force and effect as such person's original signature.
O. Disclaimer. Consultant’s financial analysis activities and work product, which may include but is not limited to pro forma analysis and tax projections, are projections only. Actual results may differ materially from those expressed in the analysis performed by Consultant due to the integrity of data received, market conditions, economic events and conditions, and a variety of factors that could DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 7 | Page
(424) 297-1079
www.kosmontrealty.com
materially affect the data and conclusions. Client’s reliance on Consultant’s analysis must consider the foregoing.
Consultant services outlined and described herein are advisory services only. Any decisions or actions taken or not taken by Client and affiliates, are deemed to be based on Client’s understanding and by execution of this Agreement, acknowledgement that Consultant’s services are advisory only and as such, cannot be relied on as to the results, performance and conclusions of any investment or project that Client may or may not undertake as related to the services provided including any verbal or written communications by and between the Client and Consultant.
Client acknowledges that Consultant's use of work product is limited to the purposes contemplated within this Agreement. Consultant makes no representation of the work product's application to, or suitability for use in, circumstances not contemplated by the scope of work under this Agreement. • Limitation of Damages. In the event Consultant is found liable for any violation of duty, whether in tort or in contract, damages shall be limited to the amount Consultant has received from Client. • Force Majeure. Consultant shall not be liable for failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by significant circumstances beyond its reasonable control, including, without limitation: epidemic; acts of God; earthquakes; fires; floods; wars; civil or military disturbances; acts of terrorism; sabotage; strikes; riots; wide-spread power failures and wide-spread internet failure. Contractual performance and deadline(s) shall be extended for a period equal to the time lost by reason of the delay.
• Expiration of Proposal for Services. If this Agreement is not fully executed by the parties within thirty (30) days from the date of this letter, this proposal shall expire.
S. Not an agreement for Legal Services or Legal Advice. This Agreement does not constitute an agreement for the performance of legal services or the provision of legal advice, or legal opinion. Client should seek independent legal counsel on matters for which Client is seeking legal advice. [ signature page follows ]
DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 8 | Page
(424) 297-1079
www.kosmontrealty.com
VI. ACCEPTANCE AND AUTHORIZATION
If this Agreement is acceptable to Client, please execute two copies of the Agreement and return both originals to Kosmont Companies. Upon receipt of both signed contracts, we will return one fully executed original for your files. Kosmont will commence work upon receipt of executed Agreement.
Read, understood, and agreed to this
____ Day of _______________ 2022
Successor Agency/City of Arvin Kosmont Real Estate Services doing business as “Kosmont Realty”
By: _________________________ By: _________________________ (Signature) (Signature)
Name: Name: Larry J. Kosmont, CRE®
(Print Name)
Its: Its: President
(Title)
DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 9 | Page
(424) 297-1079
www.kosmontrealty.com
ATTACHMENT A
Kosmont Realty
2022 Fee Schedule
Professional Services
Chairman & CEO / President $395.00/hour
Senior Managing Director/Senior Advisor $325.00/hour
Managing Director $210.00/hour
Senior Director / Senior Project Analyst $195.00/hour
Director / Project Analyst / Project Manager $165.00/hour Project Promotion/Graphics/GIS Mapping Services/Research $ 95.00/hour Clerical Support $ 70.00/hour
• Additional Expenses
In addition to professional services (labor) fees:
• An administrative fee for in-house copy, fax, phone, postage costs, digital/technological support and related administrative expenses will be charged, which will be computed at four percent (4.0 %) of monthly Kosmont Realty Corporation professional service fees incurred; plus • Out-of-pocket expenditures, such as travel and mileage, professional printing, and delivery charges for messenger and overnight packages will be charged at cost. • For Third Party Vendor(s) retained on behalf of Client (with Client’s advance approval), fees and costs will be billed to Client at 1.1X (times) fees and costs. • Consultant’s attendance or participation at any public meeting, whether such participation is in person, digital, video and/or telephonic (e.g., City Council, Planning Commission, Public Agency Board, other) requested by Client and are beyond those specifically identified in the Scope of Work will be billed at the professional services (hourly) fees as shown on this Attachment A.
• Charges for Court/Deposition/Expert Witness-Related Appearances Court-related (non-preparation) activities, such as court appearances, depositions, mediation, arbitration, dispute resolution and other expert witness activities, will be charged at a court rate of 1.5 times scheduled rates, with a 4-hour minimum.
Rates shall remain in effect until December 31, 2022.
DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 10 | Page
(424) 297-1079
www.kosmontrealty.com
ATTACHMENT B
EXCLUSIVE AUTHORIZATION TO SELL AGREEMENT
The Exclusive Authorization to Sell incorporates, by reference, the following attached documents:
Exhibit A: Schedule of Commissions
The Successor Agency to the Arvin Community Redevelopment Agency (“Successor Agency”) and City of Arvin (“City”) (hereafter collectively referred to as the “Owner” or “Seller”) hereby grants to Kosmont Real Estate Services, doing business as Kosmont Realty (“Broker”) the exclusive right to sell the subject properties known and shown/listed below:
1. Walnut and Fourth Street (APN: 190-260-06)
2. Bear Mtn Blvd near Walnut St (APN: 190-270-01)
3. Bear Mtn Blvd near Walnut St (APN: 190-270-03)
4. Bear Mtn Blvd near Walnut St (APN: 190-250-05)
5. Bear Mtn Blvd near Walnut St (APN: 190-270-06)
6. Bear Mtn Blvd near Walnut St (APN: 190-250-03)
7. Bear Mtn Blvd near Walnut St (APN: 190-250-04)
8. Bear Mtn Blvd near Walnut St (APN: 190-270-05)
9. 1541 Bear Mountain Blvd (APN: 191-010-01)
10. 816 Sycamore St (APN: 192-110-16)
(“Properties”) for a period commencing on _________________ and ending at midnight on ______________________.
The price and terms of the sale shall be as follows:
In consideration of this Authorization and Broker’s agreement to diligently pursue the procurement of a purchaser for the Properties, or a purchaser and lessees for the Properties, Owner agrees to pay Broker a commission as set forth in the attached Schedule of Commissions, which is made a part of this Agreement.
Owner shall pay said commission to Broker if: (a) the Properties or any interest therein is sold, transferred or conveyed by or through a Broker, Owner or any other party prior to the expiration of this Authorization or any extension hereof; or (b) a purchaser is procured by or through Broker, Owner or any other party who is ready, willing and able to purchase the Properties or any interest therein on terms reasonably acceptable to Owner prior to the expiration of this Authorization or any extension hereof; or (c) any contract for the sale, transfer or conveyance of the Properties or any interest therein is made directly by Owner prior to the expiration of this Authorization or any extension hereof; or (d) the Properties are withdrawn from sale without the written consent of Broker or made unmarketable by Owner’s voluntary act during the term of this Authorization or any extension hereof; or (e) within one hundred eighty (180) days after the expiration of this Authorization or any extension hereof, the Properties or any interest therein is sold, transferred, or conveyed to any person or entity with whom Broker has negotiated or to whom Broker has exposed or shown the Properties prior to such expiration in an effort to effect a transaction provided that such buyer, person or entity to whom Broker has negotiated with or has shown DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 11 | Page
(424) 297-1079
www.kosmontrealty.com
the Properties has been clearly and expressly identified in writing on such list which Broker shall have mailed to Owner at the address below stated within thirty (30) days following such expiration.
If during the terms of this authorization or any extension hereof an escrow is opened or negotiations involving the sale, transfer, or conveyance of the Properties has commenced and is continuing, then the term of this Authorization shall be extended for a period through the closing of such escrow, the termination of such negotiations or the consummation of such transaction, provided this authorization would otherwise have expired during such period.
Owner agrees that Broker shall be included as a party to any escrow opened for the sale of the Properties and the terms of said escrow shall provide that Broker shall have the right to request the escrow holder to make payment to Broker in the amount of Broker’s commission as set forth on the Schedule of Commissions attached hereto from any sale proceeds and/or deposits held in escrow.
Owner agrees to cooperate with Broker in effecting a sale of the Properties and immediately to refer to Broker all inquiries of any party interested in the Properties. All negotiations are to be through Broker.
Owner agrees to pay all customary escrow, title and revenue charges and to execute such documents as may be necessary to affect a sale of the Properties. Broker is authorized to accept a deposit from any prospective purchaser. Broker is further authorized to advertise the Properties and shall have the exclusive right to place a sign or signs on the Properties if, in Broker’s opinion, such would facilitate the sale or leasing thereof.
It is understood that it is illegal for either Owner or Broker to refuse to present, sell to any person because of race, color, religion, national origin, sex, marital status or physical disability.
Owner warrants that it is the owner of record of the Properties or has the legal authority to execute this Authorization. Owner agrees to hold Broker harmless from any liability or damages arising from any incorrect information supplied by Owner or any information which Owner fails to supply. Owner acknowledges receipt of a copy of this Authorization and the attached Schedule of Commissions, which Owner has read and understands.
DISPUTE RESOLUTION.
Broker and Owner agree to attempt to resolve any claim or controversy by submission to nonbinding mediation. Mediation shall be commenced by providing the opposing party with a written notice of the dispute or claim within 30 days of the event giving rise to the dispute or claim or within 30 days after discovery of the conditions giving rise to the dispute or claim, whichever is later. The written notice to the other party shall summarize the basis of the dispute or claim and describe the relief sought. Within 15 calendar days thereafter, if the parties have not reached a mutually satisfactory resolution, the disputing party shall have 15 additional calendar days to submit the dispute to non-binding mediation at the offices of Judicial Arbitration & Mediation Services, Inc. (JAMS) in the county where the Property is located. The parties may agree on a retired judge from the JAMS panel as a mediator. If the parties are unable to agree, JAMS will provide a list of three (3) available judges and each party may strike one. The remaining judge will serve as the mediator. Within 15 calendar days of commencement of mediation, each party agrees to produce any and all documents relied upon to prove or defend their claims. The assessment of the mediator shall be an appealable result, but only if the appealing party files a DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 12 | Page
(424) 297-1079
www.kosmontrealty.com
court action within 30 days after the mediator’s assessment is rendered. Each party shall bear its own costs of mediation including its own attorneys’ fees and related costs, and each party shall pay an equal share of the costs of the mediator’s fees and expenses.
By signing below, Seller and Buyer acknowledge that they have read, understand, accept and have received a copy of this Agreement.
Owner:
Successor Agency/City of Arvin
Broker:
Kosmont Real Estate Services, a
California corporation
CA DRE #: 02058445
By:
___________________________
By:
___________________________
Date:
___________________________
Date:
___________________________
Address:
200 Campus Drive
Arvin, CA 93203
Address:
1601 N. Sepulveda Blvd., #382
Manhattan Beach, CA 90266
Telephone:
___________________________
Telephone:
(424) 297-1070___________
DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 13 | Page
(424) 297-1079
www.kosmontrealty.com
EXCLUSIVE AUTHORIZATION TO SELL
EXHIBIT A
SCHEDULE OF COMMISSIONS (for Brokerage Services)
Kosmont Real Estate Services, doing business as Kosmont Realty (“Broker”) is hereby employed as the agent for the Successor Agency to the Arvin Community Redevelopment Agency (“Successor Agency”) and City of Arvin (“City”) (hereinafter collectively referred to as “Owner” or “Seller”) in connection with the:
Sale Lease Sublease Other
of that certain Property owned by the Owner and referred to by Owner as:
1. Walnut and Fourth Street (APN: 190-260-06)
2. Bear Mtn Blvd near Walnut St (APN: 190-270-01)
3. Bear Mtn Blvd near Walnut St (APN: 190-270-03)
4. Bear Mtn Blvd near Walnut St (APN: 190-250-05)
5. Bear Mtn Blvd near Walnut St (APN: 190-270-06)
6. Bear Mtn Blvd near Walnut St (APN: 190-250-03)
7. Bear Mtn Blvd near Walnut St (APN: 190-250-04)
8. Bear Mtn Blvd near Walnut St (APN: 190-270-05)
9. 1541 Bear Mountain Blvd (APN: 191-010-01)
10. 816 Sycamore St (APN: 192-110-16)
(hereinafter referred to as “Properties”).
Owner agrees to pay Broker, in consideration for their brokerage services relative to the above referenced Properties, a commission computed as follows:
A. SALES, EXCHANGES, AND OTHER TRANSFERS
1. Vacant Real Property: 6% of the gross sales price or independently appraised value of the parcel or a minimum commission of $60,000, as mutually agreed upon between Client and KR, whichever is greater. For a ground lease, 4% of the total base rent for the first thirty (30) years of the term of the lease; or a minimum commission amount as mutually agreed upon between Client and KR, whichever is greater.
2. Improved Real Property: 6% of the gross sales price or independently appraised value of the parcel, whichever is greater. Additionally, for any lease negotiated, 6% of lease rate for initial term and 3% for subsequent lease periods and options.
3. Commissions shall be paid through escrow upon the closing of sales and exchange transactions; absent an escrow; commissions shall be paid upon recordation of a deed or upon delivery of such deed or other conveyance if recordation is deferred more than one month thereafter. In the event of a contract or agreement of sales, joint venture agreement, business opportunity or other transaction not involving the delivery of a deed, commissions DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal City of Arvin/Arvin Successor Agency
Real Estate Advisory & Brokerage Services
March 7, 2022
Kosmont Realty 14 | Page
(424) 297-1079
www.kosmontrealty.com
shall be paid upon execution and delivery of the instrument of conveyance or establishment of the entitlement of ownership.
Miscellaneous:
The provisions hereof are subject, however, to the terms and provisions of any Exclusive Authorization to Sell to which this Schedule may be attached, and which is executed by the parties hereto.
The parties hereto intend for this Exclusive Authorization to Sell and Schedule of Commissions to satisfy the requirements of the Civil Code, Business and Professions Code, and regulatory requirements relative to verifying Broker’s authority to act on behalf of Owner and Owner’s obligation to pay Broker commissions therefore, in accordance herewith.
In the event Owner fails to make payments within the time limits called for herein, then from the date due until paid the delinquent payment shall bear interest at the rate of 10% per annum.
By signing below, Owner and Broker acknowledge that they have read, understand, accept and have received a copy of this Agreement.
Owner:
Successor Agency /City of Arvin
Broker:
Kosmont Real Estate Services, a
California corporation
CA DRE #: 02058445
By:
___________________________
By:
___________________________
Date:
___________________________
Date:
___________________________
Address:
200 Campus Drive
Arvin, CA 93203
Address:
1601 N. Sepulveda Blvd., #382
Manhattan Beach, CA 90266
Telephone:
___________________________
Telephone:
(424) 297-1070___________
DRAFT
7.A.2
Attachment: Kosmont Realty Proposal_Arvin RE Advisory & Brokerage Proposal_032222 (Successor Agency & City: Kosmont Realty Proposal