Restricted Fund Balance – includes amounts that are restricted for specific purposes stipulated by resources providers, constitutionally or through enabling legislation. Restrictions may effectively be changed or lifted only with the consent of resource providers. At June 30, 2021, the City had restricted fund balances of: $807,489 for capital projects, $442,902 for low & moderate income housing, $730 for parks and recreation, $776,153 for streets & highways, $22,286 for public safety and fire protection, and $10,472 for other purposes.
Assigned Fund Balance - includes amounts that are constrained by the City’s intent by its Council itself or a body or official to which the City Council has delegated the authority to assign amounts to be used for specific purposes that are neither restricted nor committed. The City Council has delegated this authority to the City Manager. In June 2010, the City Council adopted Resolution No. 4548-2010 approving Policy Memorandum No 2010-15 - Fund Balance Policy. The policy aims to help reduce the negative impact on the City in times of economic uncertainty and potential losses of funding from other governmental agencies. City reserves are restricted for one-time purposes. The policy establishes minimum requirements for General Fund non-departmental reserves and provides guidelines for the use of these funds. Appropriation for contingencies is maintained at twenty percent of total General Fund net appropriations for one-time emergencies and economic uncertainties. Excess fund balance at year-end must first be used to replenish the reserve amount at the 20% level.
Accordingly, at June 30, 2021, the City has assigned fund balance of $887,681 for emergency contingency, and $3,550,723 for working capital reserve. The Fund Balance Policy can be changed only by a resolution of the City Council.
Unassigned Fund Balance –The residual classification for the General Fund and includes all amounts not contained in the other classifications. Governmental funds report residual negative balances as unassigned fund balance. At June 30, 2021, the City General Fund had an unassigned fund balance of $5,218,191.
87 18.a
Packet Pg. 343 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
NOTES TO BASIC FINANCIAL STATEMENTS (CONTINUED)
FOR YEAR ENDED JUNE 30, 2021
Note 13: Fund Balance for Governmental Funds (Continued) The schedule on the following page illustrates the City’s fund balances as of June 30, 2021 for its governmental funds:
General Fund
Measure I Special
Revenue Fund
Barstow Fire
Protection District
Special Revenue
Fund
Grants Special
Revenue Fund
City Capital
Projects
Non Major
Government
Funds Total Government
$ 109,932 $ - $ - $ - $ - $ - $ 109,932
591,564 - - - - - 591,564
7,301,063 - - - - 7,301,063 -
8,002,559 - - - - 8,002,559 -
- - - - - 22,286 22,286
- - - - - 776,153 776,153
- - - - - 730 730
- - - - - 442,902 442,902
- - - - 807,489 - 807,489
- - - - - 10,472 10,472
- - - - 807,489 1,252,543 2,060,032
887,681 - - - - - 887,681
3,550,723 - - - - 3,550,723 -
4,438,404 - - - - 4,438,404 -
Other 5,218,191 (1,218,910) (5,049,330) (491,369) - (24,932) (1,566,350) 5,218,191 (1,218,910) (5,049,330) (491,369) - (24,932) (1,566,350) Total Fund Balances $ 17,659,154 $ (1,218,910) $ (5,049,330) $ (491,369) $ 807,489 $ 1,227,611 $ 12,934,645 Restricted Fund Balance for:
Public Safety/Fire Protection
Streets & Highway
Parks and Recreation
Low & Moderate Income Housing
Major Governmental Funds
Capital Projects
Other Purposes
Unassigned Fund Balance
Fund Balances
Nonspendable Fund Balance:
Prepaids & Inventory
Deposits
Advance to Other Funds
Assigned Fund Balance
Emergency Contingency Policy
Working Capital Reserve
Note 14: Restatement of Beginning Fund Balances
Restatements to the beginning net position of the Public Improvement District 91-1 and Landscape Assessment District funds of $96,393 and $114,624, respectively, were made due to implementation of GASB 84 – Fiduciary Activities, in order to present the funds as Custodial funds, rather than Agency funds.
Note 15: Measure Q
In November 2018, the voters approved Measure Q which established a one-cent sales-tax, estimated to generate $7 million in local funding for public safety and citywide services.
Funding generated from the tax is intended to:
Maintain local fire protection and paramedic services Provide police services, including neighborhood police patrols, crime prevention and investigations
Maintain streets and parks, and repair potholes
Provide quick responses to 9-1-1 emergencies
Help fund senior and youth programs
Reduce gang activity and drug-related crimes
88 18.a
Packet Pg. 344 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
NOTES TO BASIC FINANCIAL STATEMENTS (CONTINUED)
FOR YEAR ENDED JUNE 30, 2021
Note 15: Measure Q (Continued)
The revenues received and expenditures relating to Measure “Q” for the current year and previous year are as follows:
2020-2021 2019-2020
Revenues:
Measure "Q" sales tax 8,851,984 $ 7,448,243 $
Use of money and property 3,119 20,993
Total Revenues 8,855,103 7,469,236
Expenditures:
General Government 707,211 601,450
Police 1,739,572 1,633,409
Fire 3,903,826 2,510,558
Community Development 79,964 246,322
Parks 19,983 -
Public Works 240,749 383,822
Total expenditures 6,691,305 5,375,561
Current year excess (deficiency)
of revenues over expenditures 2,160,679 2,072,682
Fund Balance, Beginning of the year 4,130,794 2,058,112 Fund Balance, End of Year $ 6,291,473 $ 4,130,794
Fiscal Year
Note 16: Successor Agency Trust for Assets of Former Redevelopment Agency On December 29, 2011, the California Supreme Court upheld Assembly Bill 1X 26 (“the Bill”) that provides for the dissolution of all redevelopment agencies in the State of California.
This action impacted the reporting entity of the City of Barstow that previously had reported a redevelopment agency within the reporting entity of the city as a blended component unit.
The Bill provides that upon dissolution of a redevelopment agency, either the city or another unit of local government will agree to serve as the “successor agency” to hold the assets until they are distributed to other units of state and local government. On January 17, 2012, the City Council elected to become the Successor Agency for the former redevelopment agency in accordance with the Bill as part of City resolution number 4653-2012.
Fiduciary Funds – Successor Agency Private Purpose Trust Fund During the year ended June 30, 2021, the following changes occurred in liabilities reported in long-term debt for Fiduciary Funds:
Balance
June 30, 2020 Additions
Deletions/
Adjustments
Balance
June 30, 2021
Due Within One
Year
Public Offerings:
$ - 2,340,000 $ (745,000) $ 1,595,000 $ $ 780,000
$ - 2,340,000 $ (745,000) $ 1,595,000 $ $ 780,000
Fiduciary Funds Successor
Agency Private Purpose Trust
Redevelopment Tax Allocation Bonds:
2004 Tax Allocation Bonds
Total Fiduciary Funds
89 18.a
Packet Pg. 345 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
NOTES TO BASIC FINANCIAL STATEMENTS (CONTINUED)
FOR YEAR ENDED JUNE 30, 2021
Note 16: Successor Agency Trust for Assets of Former Redevelopment Agency (Continued) 2004 Tax Allocation Bonds
The Successor Agency’s outstanding bonds from public offerings of $2,340,000, contain a provision that if any event of default should occur, the trustee shall at the written direction of the Bond Owners of a majority in aggregate principal amount outstanding, and upon receipt of the prior written consent of the Bond Insurer, declare the principal of all of the bonds then outstanding, and the interest accrued thereon, to be due and payable immediately.
On July 1, 2004, the Agency issued $8,660,000 in Tax Allocation Bonds, Series 2004, for the purpose of refunding a portion of the Agency’s outstanding Central Redevelopment Project Tax Allocation Bonds, 1994 Series A, which are secured by an irrevocable pledge of the tax revenues payable to the Agency.
The 2004 Tax Allocation Bonds are secured by the Agency increment pledge of certain tax increment revenues to be derived from Project Area I and are payable from the Tax Revenues and such other funds as may become available for such purposes. The notes bear interest payable semiannually at rates ranging from 3.00% to 4.70% per annum, with maturity dates until September 1, 2022.
As of February 1, 2012, the future annual debt service requirements of the 2004 Tax Allocation Bonds were taken over by the Successor Agency to the Redevelopment Agency due to the dissolution of the Barstow Redevelopment Agency per Assembly Bill AB 1X 26 and Assembly Bill AB1484 (See Note 13).
For the current year, principal and interest paid was $835,948. The principal amount outstanding at June 30, 2021 is $1,595,000.
Tax allocation bonds debt service requirements to maturity are as follows:
Year Ending
June 30, Principal Interest Total
2022 780,000 $ 56,245 $ 836,245 $
2023 815,000 19,153 834,153
Total 1,595,000 $ 75,398 $ 1,670,398 $
Significant debt payments authorized in the Recognizable Obligations Payment Schedule (ROPS) by the State of California’s Department of Finance and made in FY 2020-21 from the Redevelopment Property Tax Trust Fund (RPTTF) include the following:
Principal $ 745,000
Interest 90,948
Advance to Low Income Loan 312,931
2004 Bonds:
In addition, a $64,000 administration charge was paid to the City of Barstow and other authorized payments were made for other miscellaneous fees. 90 18.a
Packet Pg. 346 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
NOTES TO BASIC FINANCIAL STATEMENTS (CONTINUED)
FOR YEAR ENDED JUNE 30, 2021
Note 16: Successor Agency Trust for Assets of Former Redevelopment Agency (Continued) Real Property Held for Resale
In order to improve blighted conditions in the City of Barstow, the City formed the Barstow Redevelopment Agency in 1973. Additionally, the Agency had adopted a Five-Year Implementation Plan for the Project Area I with an established goal of supporting affordable housing and promoting economic development, as well as community, commercial and institutional revitalization. To implement these programs and activities, the Agency acquired real property within the Project Area I to be redeveloped. Three parcels were held in the Land Held for Resale asset account by the Agency totaling $2,224,905.
As of February 1, 2012, the land held for resale was taken over by the Successor Agency to the Redevelopment Agency due to the dissolution of the Barstow Redevelopment Agency per Assembly Bill AB 1X 26 and Assembly Bill AB1484.
Note 17: Negative Fund Balance/Net Position
The following funds have negative fund balance as of June 30, 2021:
Measure I - Special Revenue Fund ($1,218,910) - On September 8, 2015, the City Council approved an interfund loan agreement in the amount of $2 million to cover the costs of completing the Henderson / Cameron Area Road Project. The funds are scheduled to be paid back periodically over the next fiscal years. The loan balance as of June 30, 2021, is $1,700,000.
Barstow Fire Protection District Fund ($5,049,330) - As projected by staff and discussed with the Board, the District’s expenditures exceeded revenues for the fiscal year. The District had reduced its operating expenditures to its lowest, yet sustainable limit. Salaries and benefits continued to be monitored but pension costs remained high with the San Bernardino County Employees’ Retirement Association. Management was aware of ongoing fiscal issues and the Board was also aware of the increasing fund balance deficit.
Grants Fund ($491,369) – The City made major progress payments for reimbursable grant projects for which it had not been reimbursed.
Harvey House Foundation ($14,611) – The Foundation is expected to become more active in the future. It is anticipated that the Foundation will receive revenue to offset the deficit fund balance in the coming years.
COVID-19 Grants ($10,321) – The City’s Covid-19 Grants fund had negative fund balance due to grant revenues that have not been reimbursed from granting agencies. The negative fund balance is expected to be reduced through future grant revenues. 91 18.a
Packet Pg. 347 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
NOTES TO BASIC FINANCIAL STATEMENTS (CONTINUED)
FOR YEAR ENDED JUNE 30, 2021
Note 18: Barstow Fire Protection District
The Barstow Fire Protection District (District) continues to have a deficit fund balance in fiscal year 2021. In fiscal year 2018, the Board and management studied and reviewed a variety of options to address these concerns.
Measure Q - In March 2018, the City Council hired a research firm to perform a general sales tax measure feasibility study. As part of this study, a survey was sent to the City of Barstow voters requesting their feedback about establishing an increase in general transaction and use (sales) tax that will fund municipal services. The result of the survey, was presented at the May 15, 2018, Council’s meeting, showing approximately 63-69% of the residents in support of the proposed transaction and use tax measure. On July 16, 2018, the City Council unanimously adopted the resolution and ordinance to put Measure Q on November 2018 ballot. The resolution called for a General Transaction and Use Tax of one percent. The measure passed with 59.28% of the vote.
The City began receiving the Measure Q revenue immediately in July, for fiscal year 2020. So far, the receipts have exceeded the City’s initial estimates. These funds will be used to pay-back the loan and sustain the Fire Department, in addition to supporting police officers, maintaining streets and help fund senior and youth programs. Beginning in fiscal year 2015, the City began advancing funds to the District to cover operational costs. On October 1, 2018, the City Council approved the amended and restated loan agreement between the City of Barstow and the Barstow Fire Protection for $4,153,696, with a zero percent interest rate. The City advanced an additional $1,243,696 for fiscal year 2020 bringing the amount due the City to $5,817,392. This action formalized the outstanding debt due the City in the event the Measure Q ballot measure was not successful. The Fire Protection district repaid $500,000 in 2021, bringing the amount due at June 20, 2021 to $5,317,392.
The Board and management will continue to monitor the Barstow Fire Protection District financial situation. Management will keep the Board informed of developing highlights, and concerns regarding the District.
92 18.a
Packet Pg. 348 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
REQUIRED SUPPLEMENTARY
INFORMATION
93 18.a
Packet Pg. 349 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
THIS PAGE INTENTIONALLY LEFT BLANK
94 18.a
Packet Pg. 350 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
REQUIRED SUPPLEMENTARY INFORMATION
FOR THE YEAR ENDED JUNE 30, 2021
1. BUDGETS AND BUDGETARY ACCOUNTING
a. Budgetary Control and Budgetary Accounting
The City follows these procedures in establishing the budgets.
1. The annual budget is adopted by the City Council after the holding of a hearing and provides for the general operation of the City. The operating budget includes proposed expenditures and the means of financing them.
2. The City Council approves total budgeted appropriations and any amendments to appropriations throughout the year. This “appropriated budget” covers City expenditures in all governmental funds, except debt service and capital improvement projects carried forward from prior years.
3. The City manager is authorized to transfer budgeted amounts between departments. Actual expenditures may not exceed budgeted appropriations at the fund level.
4. Formal budgetary integration is employed as a management control devise during the year. Commitments for materials and services, such as purchase orders and contracts, are recorded as encumbrances to assist in controlling expenditures.
Capital projects appropriations are an automatic supplemental appropriation for next year. All others lapse unless they are encumbered at year end or re-appropriated through the formal budget process.
5. Annual budgets are adopted for the General Fund, all special revenue funds, capital projects funds, and debt service funds, on a basis substantially consistent with accounting principles generally accepted in the United States of America.
Accordingly, actual revenues and expenditures can be compared with related budgeted amounts without any significant reconciling items. 95 18.a
Packet Pg. 351 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &,7<2)%$5672:
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97 18.a
Packet Pg. 353 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
BUDGETARY COMPARISON SCHEDULE
BARSTOW FIRE PROTECTION DISTRICT SPECIAL REVENUE FUND
YEAR ENDED JUNE 30, 2021
Variance with
Final Budget
Budget Amounts Actual Positive
Original Final Amounts (Negative)
Budgetary Fund Balance, July 1 $ (6,371,923) (6,371,923) $ (6,371,923) $ $ - Resources (Inflows):
Taxes 4,790,000 4,790,000 4,932,372 142,372
Licenses and permits 79,865 - 80,912 1,047
Intergovernmental 202,207 100,000 217,370 15,163
Use of money and property 30,000 30,000 470,849 440,849 Miscellaneous 1,800 - 1,800 -
Transfers in 2,959,962 - 3,497,562 537,600
Amounts Available for Appropriations (1,451,923) 1,691,911 2,828,942 1,137,031 Charges to Appropriation (Outflow):
Public safety 8,331,863 4,858,301 7,878,272 453,591
Total Charges to Appropriations 4,858,301 8,331,863 7,878,272 453,591 Budgetary Fund Balance, June 30 $ (6,310,224) $ (6,639,952) $ (5,049,330) $ 1,590,622 See Notes to Required Supplementary Information.
98 18.a
Packet Pg. 354 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &,7<2)%$5672:
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Packet Pg. 355 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
CALPERS COST SHARING PLAN
SCHEDULE OF PROPORTIONATE SHARE OF THE NET PENSION LIABILITY AS OF JUNE 30, FOR THE LAST TEN FISCAL YEARS (1)
2021 2020 2019 2018 2017 2016
Measurement Date 6/30/2020 6/30/2019 6/30/2018 6/30/2017 6/30/2016 6/30/2015 Proportion of the Net Pension Liability 26.48990% 0.24588% 0.25121% 0.24901% 0.24341% 0.20999% Proportionate Share of the Net Pension Liability 29,751,671 $ 26,777,913 $ 24,207,207 $ 24,695,340 $ 21,062,463 $ 14,413,454 $ Covered-Employee Payroll $ 10,266,253 $ 9,842,257 $ 10,816,083 $ 11,891,452 $ 10,244,777 $ 10,085,135 Proportionate Share of the Net Pension Liability as
Percentage of Covered-Employee Payroll 289.80% 272.07% 223.81% 207.67% 205.59% 142.92% Plan Fiduciary Net Position 104,679,650 $ 102,046,037 $ - $ - $ $ - $ - Plan Fiduciary Net Position as a Percentage of the Total Pension Liability 77.87% 75.26% 75.26% 73.31% 74.06% 79.82% Notes to Schedule:
Changes of Assumptions: None
Benefit Changes: There were no changes to benefit terms that applied to all members of the Public Agency Pool. However, individual employers in the Plan may have provided a benefit improvement to their employees by granting Two Years Additional Service Credit to members retiring during a specified time period (a.k.a. Golden Handshakes). Employers that have done so may need to report this information as a separate liability in their financial statement as CalPERS considers such amounts to be separately financed employer-specific liabilities. These employers should consult with their auditors. (1) Historical information is required only for measurement for which GASB 68 is applicable. Fiscal Year 2015 was the first year of implementation, therefore only six years are shown.
See Notes to Required Supplementary Information.
100
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Packet Pg. 358 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &,7<2)%$5672:
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Packet Pg. 364 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
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Packet Pg. 368 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
COMBINING BALANCE SHEET
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Assets:
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Total Assets
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Packet Pg. 369 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
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Packet Pg. 376 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &,7<2)%$5672:
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Packet Pg. 378 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &,7<2)%$5672:
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Packet Pg. 379 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &,7<2)%$5672:
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Packet Pg. 380 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &,7<2)%$5672:
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Packet Pg. 381 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
BUDGETARY COMPARISON SCHEDULE
COVID-19 Grants
YEAR ENDED JUNE 30, 2021
Variance with
Final Budget
Budget Amounts Actual Positive
Original Final Amounts (Negative)
Budgetary Fund Balance, July 1 $ (132,558) $ (132,558) $ (132,558) $ - Resources (Inflows):
Intergovernmental 988,312 - 925,066 (63,246)
Amounts Available for Appropriation (132,558) 855,754 792,508 (63,246) Charges to Appropriation (Outflow):
General government 361,000 - 360,743 257
Public safety 71,392 - 1,583 69,809
Community development 15,786 - 15,786 -
Transfers out 555,920 - 424,717 131,203
Total Charges to Appropriations 1,004,098 - 802,829 201,269 Budgetary Fund Balance, June 30 $ (132,558) $ (148,344) $ (10,321) $ 138,023 126
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Packet Pg. 382 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &,7<2)%$5672:
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Packet Pg. 383 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &,7<2)%$5672:
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Packet Pg. 384 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) &8672',$/)81'6
Public Improvement District 91-1 DFFRXQWV IRU WKH UHFHLSW RI DVVHVVPHQWV UHODWLQJ WR 3XEOLF,PSURYHPHQW'LVWULFW
DQGWKHGLVSRVLWLRQRIWKHDVVHVVPHQWVXQGHUWKHWHUPVRIWKHDJUHHPHQW Landscape Assessment District DFFRXQWV IRU WKH UHFHLSW RI DVVHVVPHQW UHODWLQJ WR WKH /DQGVFDSH'LVWULFW DQGWKHGLVSRVLWLRQRIWKHDVVHVVPHQWVXQGHUWKHWHUPVRIWKHDJUHHPHQWV 129
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Packet Pg. 385 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW, CALIFORNIA
COMBINING STATEMENT OF FIDUCIARY NET POSITION
ALL CUSTODIAL FUNDS
JUNE 30, 2021
Totals
Assets:
Cash and investments $ 96,538 $ 129,965 $ 226,503
Receivables:
Accounts - 17 17
Accrued interest receivable 57 72 129
Total Assets 96,595 130,054 226,649
Liabilities:
Accounts payable - 58,128 58,128
Total Liabilities - 58,128 58,128
Net Position:
Held trust for other purposes 96,595 71,926 168,521
Total Net Position $ 96,595 $ 71,926 $ 168,521
Public
Improvement
District 91-1
Landscape
Assessment
District
130
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Packet Pg. 386 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW, CALIFORNIA
COMBINING STATEMENT OF CHANGES IN NET POSITION
ALL CUSTODIAL FUNDS
FOR THE YEAR ENDED JUNE 30, 2021
Totals
Additions:
Investment earnings:
Interest $ 202 $ 254 $ 456
Net investment earnings 202 254 456
Collections for assessment districts - 22,129 22,129
Total Additions 202 22,383 22,585
Deductions:
Administrative expenses - 59,031 59,031
Contractual services - 6,050 6,050
Total Deductions - 65,081 65,081
Net Increase (Decrease) in Fiduciary Net Position 202 (42,698) (42,496) Net Position - Beginning -- -
Restatement of Net Position 96,393 114,624 211,017
Net Position - Beginning, as Restated 96,393 114,624 211,017 Net Position - End of the Year $ 96,595 $ 71,926 $ 168,521 Public
Improvement
District 91-1
Landscape
Assessment
District
131
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Packet Pg. 387 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
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Packet Pg. 388 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
STATISTICAL SECTION
133
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Packet Pg. 389 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
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Packet Pg. 390 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) Index Page
Financial Trends 137
These schedules contain trend information to help the reader understand how the City’s financial performance and well-being have changed over time.
Revenue Capacity 142
These schedules contain information to help the reader assess the City’s most significant local revenues sources, property tax and sales tax.
Debt Capacity 150
These schedules present information to help the reader assess the affordability of the City’s current levels of outstanding debt and the City’s ability issues additional debt in the future.
Demographic and Economic Information 155
These schedules offer demographic and economic indicators to help the reader understand the environment within which the City’s financial activities take place.
Operating Information 157
These schedules contain service and infrastructure data to help the reader understand how the information in the City’s financial report relates to the services the City provides and the activities it performs.
STATISTICAL SECTION
This part of the City of Barstow’s comprehensive annual financial report presents detailed information as a context for understanding what the information in the financial statements, note disclosures, and required supplementary information says about the City. 135
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Packet Pg. 391 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
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Packet Pg. 392 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Governmental Activities:
Net investment in capital assets 72,765,415 $ $ 76,148,543 $ 73,335,444 $ 76,362,833 $ 80,392,246 $ 81,895,762 $ 82,945,793 $ 83,892,867 $ 83,177,722 $ 83,193,605 Restricted 6,609,675 4,937,538 6,079,590 2,245,332 1,912,180 2,122,953 2,815,993 4,321,280 4,856,154 2,060,032Unrestricted 29,552,965 23,982,795 1,591,292 777,665 (4,892,883) (15,011,733) (36,244,461) (40,010,751) (48,226,357) (47,612,389) Total Governmental Activities Net Position $ 108,928,055 $ 105,068,876 $ 81,006,326 $ 79,385,830 $ 77,411,543 $ 69,006,982 $ 49,517,325 $ 48,203,396 $ 39,807,519 $ 37,641,248Business-type Activities:
Net investment in capital assets 14,530,286 $ $ 15,734,425 $ 23,983,537 $ 28,045,832 $ 22,332,269 $ 22,376,249 $ 22,036,073 $ 22,493,982 $ 22,443,932 $ 21,922,426 Unrestricted (4,779,780) (5,850,933) (10,547,818) (14,863,742) (12,179,023) (10,757,834) (9,598,849) (8,538,249) (7,598,760) (5,702,487) Total Business-type Activities Net Position $ 9 9,750,506 $ ,883,492 $ 13,435,719 $ 13,182,090 $ 10,153,246 $ 11,618,415 $ 12,437,224 $ 13,955,733 $ 14,845,172 $ 16,219,939Primary Government:
Net investment in capital assets 87,295,701 $ $ 91,882,968 $ 97,318,981 $ 104,408,665 $ 102,724,515 $ 104,272,011 $ 104,981,866 $ 106,386,849 $ 105,621,654 $ 105,116,031 Restricted 6,609,675 4,937,538 6,079,590 2,245,332 1,912,180 2,122,953 2,815,993 4,321,280 4,856,154 2,060,032Unrestricted 24,773,185 18,131,862 (8,956,526) (14,086,077) (17,071,906) (25,769,567) (45,843,310) (48,549,000) (55,825,117) (53,314,876) Total Primary Government Net Position $ 118,678,561 $ 114,952,368 $ 94,442,045 $ 92,567,920 $ 87,564,789 $ 80,625,397 $ 61,954,549 $ 62,159,129 $ 54,652,691 $ 53,861,187 Last Ten Fiscal Years
(accrual basis of accounting)
Net Position by Component
CITY OF BARSTOW
Fiscal Year
137
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Packet Pg. 393
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Expenses:
Governmental activities:
General government $ 4,372,577 $ 3,979,122 $ 3,040,319 $ 2,340,584 $ 3,453,207 $ 4,243,537 $ 3,407,933 $ 3,195,349 $ 4,539,158 $ 7,178,050 Public safety 13,910,834 14,781,347 13,263,509 13,655,432 14,618,441 16,507,044 16,367,119 18,968,397 23,887,685 22,274,486Community development 3,233,598 2,646,525 2,068,450 2,458,665 2,567,843 3,328,046 2,868,473 2,522,157 2,959,442 1,835,249Recreation 2,226,201 1,980,078 2,647,726 2,777,589 2,840,457 3,221,250 3,097,501 2,573,335 2,548,681 1,413,896Public works 4,976,071 5,928,990 11,353,600 6,882,670 7,863,741 7,603,005 6,911,603 6,937,058 7,842,090 9,115,346Interest on long-term debt 373,524 132,321 260,017 239,143 188,887 143,333 100,036 55,104 85 51,162 Total Governmental Activities Expenses 29,092,805 29,448,383 32,633,621 28,354,083 31,532,576 35,046,215 32,752,665 34,251,400 41,777,141 41,868,189 Business-type Activities:
Wastewater 4,398,844 3,479,553 3,933,499 5,217,340 5,183,363 3,991,004 4,077,582 3,928,331 5,093,118 4,626,634 Solid Waste 3,989,240 4,095,682 4,605,465 4,350,342 4,588,155 2,376,686 2,526,901 2,216,662 1,575,575 3,901,112Transit Services 2,943,943 2,714,135 2,916,096 2,685,773 127,671 - - - - - Other Enterprise Funds 324,043 336,203 382,573 391,844 473,911 - - - - - Total Business-type Activities Expenses 11,668,230 10,613,413 11,837,633 12,727,366 10,291,033 6,367,690 6,604,483 6,144,993 6,668,693 8,527,746 Total Primary Government Expenses 40,761,035 40,061,796 44,471,254 41,081,449 41,823,609 41,413,905 39,357,148 40,396,393 48,445,834 50,395,935 Program revenues:
Governmental activities:
Charges for services:
General government 1,200,799 1,543,686 1,430,544 1,490,257 1,569,444 1,702,142 1,488,493 2,318,518 1,327,757 1,236,136 Operating grants and contributions 595,522 436,434 861,484 1,702,084 1,045,110 638,283 847,091 1,002,010 859,437 757,387Capital grants and contributions 4,099,782 3,297,685 7,793,386 3,978,333 5,488,502 4,365,660 6,145,461 5,670,702 3,526,055 4,994,774 Total governmental activities program revenues 5,277,805 5,896,103 10, 7,170,674 085,414 8,103,056 6,706,085 8,481,045 8,991,230 5,713,249 6,988,297 Business-type activities:
Charges for services:
Wastewater 4,025,728 4,297,624 4,930,118 5,530,122 5,514,969 5,382,396 5,395,851 5,691,682 5,541,935 5,564,001 Solid Waste 4,062,908 3,785,422 4,040,347 4,023,189 4,121,294 1,926,405 2,027,441 1,971,820 1,988,453 4,208,547Transit Services 688,374 186,984 610,918 169,247 129,803 - - - - - Other business-type activites 34,136 94,831 75,831 69,973 58,451 - - - - - Operating grants and contributions 2,044,518 2,381,538 1,849,657 2,275,972 219,038 524,058 - - - -Capital grants and contributions - - 4,779,757 405,234 - - - - - - Total business-type activities program revenues 10, 10,855,664 16,286,628 746,399 12, 10,043,555 473,737 7,832,859 7,423,292 7,663,502 7,530,388 9,772,548 Total primary government program revenues 16, 16,751,767 26,372,042 024,204 19, 18,146,611 644,411 14, 15, 538,944 16,654,732 904,337 13,243,637 16,760,845 (Continued)
CITY OF BARSTOW
Fiscal Year
(accrual basis of accounting)
Last Ten Fiscal Years
Changes in Net Position
138
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Packet Pg. 394
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Net revenues (expenses):
Governmental activities (23,196,702) (24,170,578) (22,548,207) (21,183,409) (23,429,520) (28,340,130) (25,103,932) (25,260,170) (36,063,892) (34,879,892) Business-type activities 132,986 (812,566) 4,448,995 ( ( 253,629) 247,478) 1,465,169 818,809 1,518,509 861,695 1,244,802 Total net revenues (expenses) (24,009,268) (24,037,592) (18,099,212) (21,437,038) (23,676,998) (26,874,961) (24,285,123) (23,741,661) (35,202,197) (33,635,090) General Revenues and Other Changes in Net Position:
Governmental activities:
Taxes:
Property taxes 9,581,086 8,750,763 7,288,665 7,398,978 7,441,119 7,970,015 9,108,160 8,774,293 9,252,006 9,796,572 Transient occupancy taxes 2,626,389 2,649,694 2,748,763 2,892,232 2,857,509 3,056,078 3,147,207 3,320,952 2,855,796 3,436,464Sales taxes 6,942,387 7,346,732 7,532,540 7,259,449 7,670,993 7,166,274 7,239,830 9,690,333 13,527,079 16,387,048Franchise taxes N/A N/A N/A N/A N/A N/A N/A 1,023,994 1,077,373 1,175,996Business License taxes N/A N/A N/A N/A N/A N/A N/A 233,526 220,930 222,605Other taxes 1,213,263 1,126,099 1,178,629 1,211,911 1,265,262 1,264,374 1,308,951 59,958 64,808 55,188 Motor vehicle in lieu, unrestricted 24,459 - - - - - - - - - Use of money and property 1,297,074 328,226 693,341 471,980 482,812 278,153 202,328 242,147 318,440 1,048,338 Other general revenues 91,654 109,885 141,895 328,363 199,570 200,675 269,350 601,038 352,124 591,410Transfers - - - - 1,537,968 - - - - Extraordinary item - gain due to dissolution of RDA 311,238 - - - - - - - - - Total Governmental Activities 22,087,550 20,311,399 19,583,833 19,562,913 21,455,233 19,935,569 21,275,826 23,946,241 27,668,555 32,713,621 Business-type activities:
Investment Income
Other revenue - - - - - - - - 27,744 129,965
Transfers - - - - (2,781,366) - - - -
Total Business-type Activities - - - - (2,781,366) - - - 27,744 129,965 Total Primary Government 22,087,550 20,311,399 19,583,833 19,562,913 18,673,867 19,935,569 21,275,826 23,946,241 27,696,299 32,843,586 Changes in Net Position:
Governmental activities (3, (1,109,152) 859,179) (2,964,374) (1,620,496) (1,974,287) (8,404,561) (3,828,106) (1,313,929) (8,395,337) (2,166,271) Business-type activities 132,986 (812,566) 4,448,995 ( (3, 253,629) 1,465,169 028,844) 818,809 1,518,509 889,439 1,374,767 Total Primary Government (1,921,718) $ ( $ 1 3,726,193) $ ( ,484,621 $ ( 1,874,125) $ ( 5,003,131) $ ( 6,939,392) $ 3,009,297) $ ( 204,580 $ 7,505,898) $ (791,504) Fiscal Year
(accrual basis of accounting)
Last Ten Fiscal Years
Changes in Net Position (Continued)
CITY OF BARSTOW
139
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Packet Pg. 395
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
General Fund:
ReservedNonspendable* $ 6,025,426 $ 5,819,857 $ 5,391,889 $ 10,843,398 $ 8,680,778 $ 7,619,282 $ 5,183,492 $ 8,111,586 $ 9,955,211 $ 8,002,559 Restricted* - - - - - - - - - -
Assigned* - - - - - - - 4, - 406,560 4,438,404
Unreserved/Unassigned* 25,449,432 22,749,055 21,445,217 14,466,701 12,063,100 9,222,550 9,163,739 5,843,014 (479,717) 5,218,191 Total General Fund $ 31,474,858 $ 28,568,912 $ 26,837,106 $ 25,310,099 $ 20,743,878 $ 16,841,832 $ 14,347,231 $ 13,954,600 $ 13,882,054 $ 17,659,154 All Other Governmental Funds:
ReservedNonspendable* $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Restricted* 6,935,670 15,283,195 6,266,281 2,269,521 1,941,169 2,122,945 2,232,689 4,376,375 4,856,154 2,060,032 Assigned* - - - - - - - - -
Unreserved/Unassigned*, reported in:
Special revenue funds ( - 229,905) (4,178,949) (1,203,369) (3,645,638) (4,363,879) (5,509,987) (8,192,534) (8,168,382) (6,784,541) Total all other governmental funds $ 6,935,670 $ 15,053,290 $ 2,087,332 $ 1,066,152 $ (1,704,469) $ (2,240,934) $ (3,277,298) $ (3,816,159) $ (3,312,228) $ (4,724,509) Fiscal Year
(modified accrual basis of accounting)
Last Ten Fiscal Years
Fund Balances of Governmental Funds
CITY OF BARSTOW
Source: Barstow Finance Department* FY11 Implementation of GASB 54 Fund Balance Classifications.**The Hospital Fund for FY09 & FY10 was not included with the General Fund balances but shown as a separate special revenue fund. For comparison purposes, the Hospital Fund (now labeled General Fund II), is combined 140
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Packet Pg. 396
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Revenues:
Taxes $ 20,387,584 $ 19,873,288 $ 18,558,246 $ 18,540,422 $ 19,035,503 $ 19,265,710 $ 20,748,728 $ 22,592,237 $ 26,994,270 $ 31,071,466Licenses and permits 196,868 204,981 472,222 429,256 509,323 574,297 561,068 490,306 442,883 536,798Fines and forfeitures 106,341 104,690 142,409 125,915 140,692 216,117 78,862 114,564 132,885 89,923From other agencies 4,915,206 3,907,154 5,075,232 9,278,029 6,713,437 5,161,172 7,365,874 6,051,941 5,818,278 5,535,566Charges for services 677,688 1,099,480 750,382 1,281,351 808,528 712,690 655,742 1,053,338 444,041 328,465Use of Money and Property 990,102 328,226 768,427 586,238 579,736 430,896 350,328 924,400 354,439 1,084,648Other 91,654 71,385 82,362 115,621 80,491 68,327 136,635 472,340 352,124 592,683 Total Revenues 27,365,443 25,589,204 25,849,280 30,356,832 27,867,710 26,429,209 29,897,237 31,699,126 34,538,920 39,239,549 Expenditures
Current:
General government 3,076,341 3,061,475 2,882,514 2,934,731 3,350,641 3,633,918 3,197,895 3,964,134 3,271,395 5,750,679Public safety 13,338,769 13,427,720 13,473,842 14,493,181 14,032,923 14,419,752 15,862,429 17,253,463 18,655,220 18,784,049Public works 2,746,018 3,481,396 3,108,045 3,050,005 3,274,837 3,418,593 3,321,773 3,162,077 3,854,666 5,042,790Recreation 1,547,172 1,520,643 2,333,991 2,380,982 2,541,381 2,575,293 2,628,551 2,429,324 2,188,673 1,007,100Community development 3,035,640 2,552,355 2,147,003 2,427,110 2,573,815 2,839,218 2,609,936 2,555,676 2,626,193 1,605,860 Debt service:
Principal retirement 510,000 1, - 070,000 1,100,000 1,145,000 1,190,000 1,249,026 1,290,000 1,826,578 2,114,295Interest and fiscal charges 382,583 447,390 386,172 356,970 311,543 262,775 212,818 167,854 112,835 163,912 Capital Outlay 9,775,072 7,233,394 15,212,059 6,162,422 6,929,898 2,652,301 4,176,662 3,372,692 1,890,389 2,532,983 Total Expenditures 34,411,595 31,724,373 40,613,626 32,905,401 34,160,038 30,991,850 33,259,090 34,195,220 34,425,949 37,001,668Excess (Deficiency) of Revenues Over (Under) Expenditures (7,046,152) (6,135,169) (14,764,346) (2,548,569) (6,292,328) (4,562,641) (3,361,853) (2,496,094) 112,971 2,237,881 Other financing sources (uses):
Transfers in 24,557,219 5,596,067 13,715,655 5,401,533 7,939,085 3,486,269 4,950,785 4,645,038 4,667,368 8,189,791Transfers out (24,557,219) (5,596,067) (13,715,655) (5,401,533) (9,288,600) (3,486,269) (4,950,785) (4,645,038) (4,667,368) (8,189,791)Proceeds from sale of assets 41,770 23,296 33,374 382 24,332 - 32,306 720,188 318,414 126,938Capital leases 264,473 651,548 33,208 - - 124,130 642,996 - - -Issuance of bonds 9,770,000 - - - - - - - -Issuance premium 901,999 - - - - - - - -Extraordinary loss on dissolution of RDA (7,023,762) - - - - - - - - -Transfer of residual equity due to termination (7,023,762) - - - 280,669 - - - - - Total Other Financing Sources (Uses) (13,741,281) 11,346,843 66,582 382 (1,044,514) 124,130 675,302 720,188 318,414 126,938Net Change in Fund Balances $ (20,787,433) $ 5,211,674 $ (14,697,764) $ (2,548,187) $ (7,336,842) $ (4,438,511) $ (2,686,551) $ (1,775,906) $ 431,385 $ 2,364,819 Debt service as a percentage of noncapital expenditures 3.6% 0.7% 5.7% 5.4% 5.3% 5.1% 5.0% 4.7% 6.0% 6.6% Fiscal Year
Last Ten Fiscal Years
Changes in Fund Balances of Governmental Funds
CITY OF BARSTOW
141
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Packet Pg. 397
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Fiscal Year
Ended SBE City
June 30 Secured Unsecured Nonunitary Net Value % Change 2012 1,105,173,976 $ 105,571,293 $ 2,186,442 $ 1,212,931,711 $ -2.61% 2013 1,092,408,332 104,914,213 2,165,193 1,199,487,738 -1.11% 2014 1,039,983,380 102,817,129 677,094 1,143,477,603 -4.67% 2015 1,051,514,240 103,609,217 562,232 1,155,685,689 1.07% 2016 1,075,574,231 100,176,764 1,091,097 1,176,842,092 1.83% 2017 1,179,227,750 92,848,517 1,090,047 1,273,166,314 8.18% 2018 1,199,023,057 87,038,753 1,174,083 1,287,235,893 1.11% 2019 1,277,320,622 97,633,037 1,100,258 1,376,053,917 6.90% 2020 1,364,148,974 96,231,522 1,041,131 1,461,421,627 6.20% 2021 1,406,623,300 99,619,193 986,567 1,507,229,060 3.13% Source: HdL Coren & Cone/San Bernardino Co Assessor 2011/12-2020/21 Combined Tax Rolls *Exempt values are not included in Total Assessed Value.
Last Ten Fiscal Years
Assessed Value of Taxable Property
CITY OF BARSTOW
City of Barstow
142
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Packet Pg. 398 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report)
CITY OF BARSTOW
Assessed Value of Taxable Property by Class
Fiscal
Year
Residential
Property
Commercial
Property
Industrial
Property Vacant Land SBE Non Unitary Unsecured Other
Total Taxable
Assessed Value
(a)
Total
Direct
Tax Rate
2011-12 537,307,938 $ 344,666,172 $ 33,358,242 $ $ 2,186,442 168,757,467 $ $ 21,084,157 105,571,293 $ 1, $ 0.410% 212,931,711 2012-13 520,704,582 354,140,448 30,209,573 173,103,339 2,165,193 104,914,213 14,250,390 1,199,487,738 0.404% 2013-14 504,674,199 342,399,149 29,304,358 150,618,871 677,094 102,817,129 12,986,803 1,143,477,603 0.150% 2014-15 525,855,023 344,691,557 29,536,256 99,024,673 562,232 103,609,217 52,406,731 1,155,685,689 0.150% 2015-16 541,740,544 352,020,034 28,283,445 100,095,186 1,091,097 100,176,764 53,435,022 1,176,842,092 0.150% 2016-17 558,991,827 436,522,540 28,978,583 100,797,408 1,090,047 92,848,517 53,937,392 1,273,166,314 0.150% 2017-18 572,637,923 442,244,817 29,637,912 101,055,206 1,174,083 87,038,753 53,447,196 1,287,235,890 0.150% 2018-19 601,437,825 489,871,146 29,041,847 103,502,172 1,100,258 97,633,037 53,467,632 1,376,053,917 0.150% 2019-20 651,254,179 512,323,358 30,132,457 115,105,159 1,041,131 96,231,522 55,333,821 1,461,421,627 0.150% 2020-21 675,586,704 541,992,444 28,785,991 104,526,446 986,567 99,619,193 55,731,715 1,507,229,060 0.150% Source: HdL Coren & Cone/San Bernardino Co Assessor 2011/12-2020/21 Combined Tax Rolls Notes:
(a) Exempt values are not included in Total Assessed Value.
Last Ten Fiscal Years
$1,000,000
$1,100,000
$1,200,000
$1,300,000
$1,400,000
$1,500,000
FY-09 FY-10 FY-11 FY-12 FY-13 FY-14 FY-15 FY-16 FY-17 FY-18 $1,000,000,000
$1,100,000,000
$1,200,000,000
$1,300,000,000
$1,400,000,000
$1,500,000,000
$1,600,000,000
FY-12 FY-13 FY-14 FY-15 FY-16 FY-17 FY-18 FY-19 FY-20 FY-21 7 143
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Packet Pg. 399 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Direct & Overlapping (2) Tax Rates
Basic Levy (1) 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000Barstow Unified School Bond 0.0401 0.0393 0.0370 0.0474 0.0329 0.0394 0.0308 0.1245 0.0451 0.0844Mojave Water Agency 0.1675 0.1675 0.1675 0.1675 0.1675 0.1675 0.1675 0.1675 0.1675 0.1675 Total Direct & Overlapping Rates $ 1.2076 $ 1.2068 1.2045$ 1.2149$ $ 1.2004 1.2069$ 1.1983$ 1.2920$ $ 1.2126 $ 1.2519 City's Share of 1% Levy Per Prop 13 (3) 0.14974 0.14974 0.14974 0.14974 0.14974 0.14974 0.14974 0.14974 0.14974 0.14974General Obligation Debt Rate Redevelopment Rate (4) 1.0000 1.0000 N/A N/A N/A N/A N/A N/A N/A N/A Total Direct Rate (5) 0.41035 0.40408 0.14996 0.14998 0.15012 0.15012 0.15015 0.15016 0.015001 0.015005Source: San Bernardino County Assessor/Hdl, Coren & Cone Last Ten Fiscal Years
(Rate per $100 of assessed value)
Direct and Overlapping Property Tax Rates
CITY OF BARSTOW
Fiscal Year
NOTE:(1) In 1978, California voters passed Proposition 13 which sets the property tax rate at a 1.00% fixed amount. This 1.00% is shared by all taxing agencies for which the subject property resides within. In addition to the 1.00% fixed amount, property owners are charged taxes as a percentage of assessed property values of any voter approved bonds.(2) Overlapping rates are those of local and county governments that apply to property owners within the City. Not all overlapping rates apply to all city property owners.(3) City's Share of 1% Levy is based on the City's share of the general fund tax rate area with the largest net taxable value within the City. ERAF general fund tax shifts may not be included in tax ratio figures.(4) Redevelopment Rate is based on the largest RDA tax rate area and only includes rate(s) from indebtedness adopted prior to 1989 per California State statute. RDA direct and overlapping rates are applied only to the incremental property values. The approval of ABX1 26 eliminated Redevelopment from the State of California for the fiscal year 2012/13 and years thereafter.(5) Total Direct Rate is the weighted average of all individual direct rates appled to the City. Beginning in 2013/2014 the Total Direct Rate no longer includes revenue generated from teh former redevelopment taxrate areas. Challenges to recognized enforceable obligations are assumed to have been resolved during 2012/13. for the purposes of this report, residual revenue is assumed to be distributed to the City in the same 144
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Packet Pg. 400
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive 2020-21 % of
Property Owner Primary Land Use Assessed Valuation Total (1) 1 FRO2MO Barstow LLC Shopping Center $120,285,135 7.98% 2 Hospital of Barstow Inc. Hospital 49,441,213 3.28%
3 Walmart Inc. Commercial Store 32,260,371 2.14%
4 TVL Properties LLC Supermarket 13,453,030 0.89%
5 Pilot Travel Centers LLC Travel Center 12,986,311 0.86% 6 Lee Family Irrevocable Trust Hotel 12,730,959 0.84%
7 Fred and Robin Rosenberg Family LP Commercial Properties 12,262,648 0.81% 8 Desert Heights LP Apartments 12,021,725 0.80%
9 Hospitality Express II LLC Hotel 11,787,307 0.78%
10 Ayres Hotel Barstow LP Hotel 11,220,000 0.74%
11 Montara 158 LP Apartments 10,200,000 0.68%
12 Home Depot USA Inc. Commercial Store 10,082,320 0.67% 13 T T Group Inc. Shopping Center 9,718,362 0.64%
14 Elite Experience Inc. Hotel 9,300,782 0.62%
15 Barstow Retail Partners LLC Shopping Center 8,976,741 0.60% 16 HPT TA Properties Trust Travel Center 7,759,000 0.51% 17 Loves Country Stores of California Travel Center 7,478,353 0.50% 18 Villa Vista Apartments 6,668,681 0.44%
19 Principal Holdings LLC Motel 6,150,000 0.41%
20 Barstow Outlet Shopping Center 5,973,300 0.40%
$352,019,375 24.60%
(1) 2020-21 Local Secured Assessed Valuation: $1,507,229,060 Source: California Municipal Statistics, Inc.
CITY OF BARSTOW
Largest 2020-21 Local Secured Taxpayers
145
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Packet Pg. 401 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) Percent of Percent of
Total City Total City
Taxable Taxable Taxable Taxable
Assessed Assessed Assessed Assessed
Owner Value Value Value Value
Ayers Hotel Barstow LP $ 0.74% 11,220,000
Barstow Outlet LLC 0.40% 5,973,300 $ 10,422,003 0.86%
Compass Bank 13,649,500 1.13%
Desert Heights LLC 0.80% 12,021,725 11,380,220 0.94%
Fred and Robin Rosenberg Family Limited 0.81% 12,262,648 FRO2MO Barstow LLC 120,285,135 7.98%
Home Depot USA Inc 10,082,320 0.67% 10,496,528 0.87%
Hospital of Barstow Inc 3.28% 49,441,213 18,422,807 1.52% Hospitality Express II LLC 0.78% 11,787,307 10,422,281 0.86% Lee Family Irrevocable Trust 0.84% 12,730,959
Pilot Travel Center LLC 0.86% 12,986,311
Suk Hee Suh 10,823,512 0.89%
Tanger Properties LP 24,640,388 2.03%
TVL Properties 0.89% 13,453,030 9,419,191 0.78%
Walmart Real Estate Business Trust 2.14% 32,260,371
Meruelo Maddux Properties 13,388,052 1.10%
TOTAL OF TOP TEN: $ 304,504,319 20.20% 133,064,482 $ 10.97% CITY TOTAL $ 1,212,931,711 1,507,229,060 $
**Listed alphabetically
Source: Hdl Coren & Cone-San Bernardino County Assessor
CITY OF BARSTOW
2021 2012
Current Year and Ten Years Ago
Principal Property Tax Payers
146
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Packet Pg. 402 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) Fiscal Taxes Levied Collected in
Year Ended for the Percent Subsequent Percentage
June 30 Fiscal Year Amount of Levy Years Amount of Levy 2012 $ 4,609,714 $ 4,446,347 96% 197,473 $ $ 4,643,820 101% 2013 4,587,850 4,415,853 96% 182,397 4,598,250 100%
2014 4,511,674 4,410,513 98% 167,577 4,578,090 101%
2015 4,598,336 4,506,775 98% 103,403 4,610,178 100%
2016 4,730,324 4,634,977 98% 72,106 4,707,083 100%
2017 4,806,434 4,729,391 98% 72,314 4,801,705 100%
2018 4,812,206 4,753,763 99% 57,650 4,811,413 100%
2019 4,980,727 4,901,322 98% 50,063 4,951,385 99%
2020 5,241,332 5,145,125 98% 55,887 5,201,012 99%
2021 5,365,780 5,355,407 100% 5, - 355,407 100%
Source: San Bernardino Auditor-Controller Recorder
Includes Barstow Park & Recreation and Barstow Fire Protection District Collected within the
Fiscal Year of Levy Total Collections to Date
Last Ten Fiscal Years
Property Tax Levies and Collections
City of Barstow
147
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Packet Pg. 403 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) Business Name Business Category
Arco AM PM Service Stations
Barstow Shell Service Stations
Chevron Service Stations
Circle K Service Stations
Coach Women's Apparel
Del Taco Quick-Service Restaurants
Food 4 Less Grocery Stores
Home Depot Building Materials
In N Out Burger Quick-Service Restaurants
Lenwood Arco Service Stations
Loves Travel Stop 374 Service Stations
Marshalls Family Apparel
McDonalds Quick-Service Restaurants
Michael Kors Family Apparel
Mojave Ford/Nissan of Barstow New Motor Vehicle Dealers Mojave Toyota Chrysler Dodge Jeep Ram New Motor Vehicle Dealers MSC Industrial Supply Building Materials
Nike Shoe Stores
Old Navy Family Apparel
Pilot Travel Center Service Stations
Stater Bros Grocery Stores
Terrible Herbst Convenience Stores/Liquor
Travelcenters of America Service Stations
Vans Specialty Stores
Walmart Discount Dept Stores
Percent of Fiscal Year Total Paid by Top 25 Accounts = 68.18% Period: July 2020 Thru March 2021
Source: Hinderliter, de Llamas & Associates, State Board of Equalization For the Fiscal Year 2021
Top 25 Sales Tax Producers (Alphabetically)
CITY OF BARSTOW
148
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Packet Pg. 404 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) Business Name Business Category
Arco Service Stations
Arco AM PM Service Stations
Barstow Shell Service Stations
Calvin Klein Family Apparel
Chevron Service Stations
Circle K Service Stations
Coach Women's Apparel
Del Taco Quick-Service Restaurants
Home Depot Building Materials
In N Out Burgers Quick-Service Restaurants
Loves Travel Stop Service Stations
McDonalds Quick-Service Restaurants
Pilot Travel Center Service Stations
Ralph Lauren Family Apparel
Reebok Shoe Stores
Shell Service Stations
Soutar's Chrysler Dodge Jeep Ram & Toyota New Motor Vehicle Dealers Soutar's Ford/Nissan New Motor Vehicle Dealers
Terrible Herbst Convenience Stores/Liquor
Thrifty Oil Service Stations
Travel Centers of America Service Stations
Union 76 Service Stations
Valero Service Stations
Valmont Newmark Heavy Industrial
Walmart Discount Dept Stores
Percent of Fiscal Year Total Paid by Top 25 Accounts = 68.80% Period: July 2011 thru June 2012
Source: Hinderliter, de Llamas & Associates, State Board of Equalization For the Fiscal Year 2012
Top 25 Sales Tax Producers (Alphabetically)
CITY OF BARSTOW
149
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Packet Pg. 405 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020
Apparel Stores $ 121,561 $ 136,098 $ 133,682 $ 132,209 $ 129,936 $ 131,139 $ 126,807 $ 121,530 $ 107,223 $ 57,480Food Stores 11,696 11,826 18,756 27,229 25,860 25,047 25,129 27,425 24,378 23,631Eating & Drinking Places 74,629 72,014 73,539 78,836 81,830 86,487 88,908 89,891 93,254 81,362Auto Dealers & Supplies 30,721 31,009 27,338 27,153 36,460 40,235 38,661 36,005 32,674 36,486Service Stations 263,969 285,795 292,409 301,169 262,870 251,746 251,447 273,455 254,498 197,752Other Retail Stores 94,021 101,423 101,714 103,093 102,123 100,869 106,946 110,707 111,949 131,226All Other Outlets 95,115 79,690 86,207 86,831 80,706 82,819 89,560 93,786 103,625 120,620Total $ 674,090 $ 735,477 $ 733,645 $ 756,520 $ 719,785 $ 718,342 $ 727,458 $ 752,799 $ 727,601 $ 648,557 Source: State of California Board of Equalization, California Department of Taxes and Fees Administration, State Controller's Office and The Hdl Companies Note: Due to confidentiality issues, the names of the ten largest revneue payers are not available. The categoriespresented are intended to provide alternate information regarding the sources of the City's revenue.
Last Ten Calendar Years (in thousands of dollars)
Taxable Sales by Category
CITY OF BARSTOW
Fiscal Year
Adjusted for Economic Data
150
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Packet Pg. 406
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Fiscal Year Tax Total Wastewater Wastewater Total Total Percentage Debt Ended Allocation Measure I Capital Lease Governmental Certificates of Capital Lease Business-type Primary of Personal Per June 30 Bonds Loans TRIP Agreements Activities Participation Agreements Activities Government Income 1 Capita 1 2012 $ - $ - $ - $ 3,197,150 $ 3,197,150 $ 2,028,159 $ 2,137,571 $ 4,165,730 $ 7,362,880 37.54% $ 3202013 - 10, - 671,999 3,337,511 14,009,510 1,766,808 1,968,975 3,735,783 17,745,293 87.23% 765.94 2014 - - 9, 2, 849,249 874,809 12,724,058 1,500,766 1,757,803 3,258,569 15,982,627 83.27% 686.192015 - - 8, 2, 276,499 574,443 10,850,942 1,225,279 1,544,289 2,769,568 13,620,510 69.61% 585 2016 - - 7,018,749 2,092,667 9,111,416 935,472 1,312,813 2,248,285 11,359,701 63.48% 4662017 - - 5,715,999 1,625,443 7,341,442 636,157 1,096,638 1,732,795 9,074,237 52.00% 3742018 - - 4,363,249 1,825,131 6,188,380 327,402 887,323 1,214,725 7,403,105 45.33% 3052019 - - 2,960,499 1,195,399 4,155,898 - 598,645 598,645 4,754,543 26.66% 1972020 - - 1,507,749 1,027,235 2,534,984 - 349,491 349,491 2,884,475 15.10% 1192021 - 1,594,224 1,594,224 47,057 47,057 1,641,281 8.42% 68 1 These ratios are calculated using personal income and population for the prior calendar year
Governmental Activities Business-type
Last Ten Fiscal Years
Ratios of Outstanding Debt by Type
CITY OF BARSTOW
151
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Packet Pg. 407
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Fiscal Year Tax Percent of
Ended Allocation Assessed Per
June 30 Bonds Value 1 Capita
2012 0.00% - -
2013 0.00% - -
2014 0.00% - -
2015 0.00% - -
2016 0.00% - -
2017 0.00% - -
2018 0.00% - -
2019 0.00% - -
2020 0.00% - -
2021 0.00% - -
Source: Barstow Finance Department
General bonded debt is debt payable with governmental fund resources and general obligation bonds recorded in enterprise funds (of which, the City has none). 1 Assessed value has been used because the actual value of taxable property is not readily available in the State of California.
Last Ten Fiscal Years
Ratio of General Bonded Debt Outstanding
CITY OF BARSTOW
152
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Packet Pg. 408 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) 2020-21 Assessed Valuation: $1,507,229,060
Total Debt Percentage City's share of
OVERLAPPING TAX AND ASSESSMENT DEBT: 6/30/2021 Applicable (1) Debt 6/30/21 Barstow Unified School District $ 65.915% 22,798,257 34,587,358 $ Mojave Water Agency 3,290,000 3.769% 124,000
City of Barstow-No debt - 100.000% -
TOTAL OVERLAPPING TAX AND ASSESSMENT DEBT $ 22,922,257
OVERLAPPING GENERAL FUND OBLIGATION DEBT:
San Bernardino County General Fund Obligations $ 0.602% 1,288,852 214,095,000 $ San Bernardino County Pension Obligations Bonds 0.602% 1,088,570 180,825,585 San Bernardino County Flood Control District General Fund Obligations 0. 51,360,000 602% 309,187 TOTAL DIRECT AND OVERLAPPING GENERAL FUND DEBT $ 2,686,609 OVERLAPPING TAX INCREMENT DEBT (Successor Agency): $ 1,595,000 100.00% $ 1,595,000 TOTAL DIRECT DEBT $ -
TOTAL OVERLAPPING DEBT $ 27,203,866
COMBINED TOTAL DEBT $ 27,203,866 (2)
(1) The percentage of overlapping debt applicable to the city is estimated using taxable assessed property value. Applicable percentages were estimated by determining the protion of the overalpping district's assessed value that is within the boundaries of the city divided by the district's total taxable assessed value.
(2) Excludes tax and revenue anticipation notes, enterprise revenue, mortgage revenue and non-bonded capital lease obligations Ratios to 2020-21 Assessed Valuation:
Direct Debt 0.00%
Total Direct and Overlapping Tax and Assessment Debt 1.52% Combined Total Debt 1.80%
Ratios to Redevelopment Successor Agency Incremental Valuation $614,523,247):
Total Overlapping Tax Increment Debt 0.26%
Source: California Municipal Statistics, Inc.
CITY OF BARSTOW
Direct & Overlapping Governmental Activities Debt
As of June 30, 2021
153
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Packet Pg. 409 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Assessed valuation $ 1,212,931,711 $ 1,199,487,738 $ 1,143,477,603 $ 1,155,685,689 $ 1,176,842,092 $ 1,273,166,314 $ 1,287,235,890 $ 1,376,053,917 $ 1,461,421,627 $ 1,507,229,060 Conversion percentage 25% 25% 25% 25% 25% 25% 25% 25% 25% 25% Adjusted assessed valuation 303,232,928 299,871,935 285,869,401 288,921,422 294,210,523 318,291,579 321,808,973 344,013,479 365,355,407 376,807,265 Debt limit percentage 15% 15% 15% 15% 15% 15% 15% 15% 15% 15% Debt limit 44,980,790 45,484,939 42,880,410 43,338,213 44,131,578 47,743,737 48,271,346 51,602,022 54,803,311 56,521,090 Legal debt margin 45,484,939 $ 44,980,790 $ 42,880,410 $ 43,338,213 $ 44,131,578 $ 47,743,737 $ 48,271,346 $ 51,602,022 $ 54,803,311 $ 56,521,090 $ Total debt applicable to the limit
as a percentage of debt limit 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Source: Barstow Department of Finance
County Tax Assessor's Office
Fiscal Year
Last Ten Fiscal Years
Legal Debt Margin Information
CITY OF BARSTOW
The Government Code of the State of California provides for a legal debt limit of 15% of gross assessed valuation. However, this provision was enacted when assessed valuation was based upon 25% of market value. Effective with the 1981-82 fiscal year,each parcel is now assessed at 100% of market value (as of the most recent change in ownership for that parcel). The computations shown above reflect a conversion of assessed valuation data for each fiscal year from the current full valuation perspective to 154
the 25% level that was in effect at the time that the legal debt margin was enacted by the State of California for local governments located within the state.
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Packet Pg. 410
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Fiscal Year
Ended Tax Debt Service (1)
Principal and
June 30 Increment (1) Interest Coverage
2012 - - -
2013 - - -
2014 - - -
2015 - - -
2016 - - -
2017 - - -
2018 - - -
2019 - - -
2020 - - -
2021 - - -
Source: Barstow Finance Department
Note: Details regarding the city's outstanding debt can be found in the notes to the fina statements. Operating expenses do not include interest or depreciation expenses (1) Amounts have been rounded to the nearest thousand.
Tax Allocation Bonds
Last Ten Fiscal Years
Pledged-Revenue Coverage
CITY OF BARSTOW
155
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Packet Pg. 411 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) Calendar Population Personal Income Per Capita Unemployment Median Age % of Pop 25+ with High
School Degree
% of Pop 25+ with
Bachelor's Degree
Year (1) (in thousands) Income Rate (2) Median Age High School Degree Bachelor's Degree 2011 23,019 $ 451,449 $ 19,612 16.4% 33.1 78.9% 9.4%
2012 23,168 471,330 20,344 12.0% 33.3 81.0% 9.2%
2013 23,292 447,043 19,193 10.5% 32.9 79.8% 9.7%
2014 23,265 455,250 19,568 7.5% 33.7 82.4% 10.6%
2015 24,360 435,931 17,895 6.0% 31.2 80.3% 11.8%
2016 24,248 423,134 17,450 5.3% 30.2 79.8% 11.5%
2017 24,248 396,041 16,332 6.9% 29.3 77.3% 11.7%
2018 24,150 430,713 17,834 5.9% 30.0 78.4% 11.7%
2019 24,268 463,700 19,107 5.2% 29.8 79.3% 11.3%
2020 24,205 471,728 19,488 11.4% 30.1 78.2% 9.2%
Sources: HdL Coren & Cone
(1) Population: California State Department of Finance(2) Unemployment Data: California Employment Development Department
CITY OF BARSTOW
Demographic and Economic Statistics
Last Ten Calendar Years
0.0%2.0%4.0%6.0%8.0%
10.0%12.0%14.0%
2012 2013 2014 2015 2016 2017 2018 2019 2020
Unemployment Rate
$16,000$16,500$17,000$17,500$18,000$18,500$19,000$19,500$20,000$20,500$21,000 2012 2013 2014 2015 2016 2017 2018 2019 2020
Personal Income per Capita
156
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Packet Pg. 412
Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive
CITY OF BARSTOW
Principal Employers
Percent of Percent of
Number of Total Number of Total
Employer Employees Employment Employees Employment
Ft. Irwin National Training Center* 60.3% 8,900 5,665 46.5% Marine Corps Logistics Base** 11.5% 1,845 1,700 15.1%
BNSF Railroad 6.8% 1,000 1,000 8.2%
Barstow Unified School District 6.5% 617 958 5.1%
Outlets at Barstow (Formerly Tanger Outlet Stores) 3.3% 400 480 3.3% Raytheon Technical Services Co, LLC* 2.7% 498 400 4.1%
Barstow Community College 2.6% - 377 0.0%
Barstow Community Hospital 2.4% 290 348 2.4%
Wal-Mart 2.1% - 305 0.0%
Silver Valley School District* 2.0% - 300 0.0%
Northrup Grunman (Vernell until 2002)* 0.0% 1,152 - 9.5% San Bernardino County 0.0% 300 - 2.5%
IAP World Services* 0.0% 412 - 3.4%
Total Top Employers 14,768 100.0% 12,179 100.0%
Source: MuniServices, LLC / Avenu Insights & Analytics
Source: 2011, previously published CAFR
*Employers outside of City Limits
(1) Total City Labor Force is provided by EDD Labor Force Data.
Note: Fort Irwin National Training Center employee headcount includes current active employees.
Does not include soldiers on 10 rotations a year.
2020 and Ten Years Ago
2020 2011
** Total civilian employee headcount includes Marine Corps Logistics Base, Barstow Last Ten Calendar Years
157
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Packet Pg. 413 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) Function 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 General government* 21 13 15 17 16 22 16 16 26.5 24.5
Police Safety
Sworn 41 37 37 38 38 41 37 38 46 46
Non-Sworn 13 17 16 19 19 13 18 18 20 20
Fire Safety**
Sworn 23 23 23 28 20 20 20 20 27 28
Non-Sworn 1 1 1 1 1 1 1 11 2
Recreation 18 16 14 17 17 19 17 17 11 2.5
Community Service 31 36 33 26 21 32 21 24 23 29
Community Development 10 10 12 10 16 10 15 10 11 7
Redevelopment - - - - - - - 2 - -
Solid Waste 2 2 3 1 1 1 1 111
Wastewater 9 8 9 8 11 11 11 10 11 11
Transit 1 1 - - - - - 1 - -
Total 170 164 163 167 160 157 155 170 177.5 171.0
* Includes 7 Elected Officials
**Fire District added November 17, 2010
Source: City of Barstow Adopted Budget-Authorized Positions Full-Time Employees as of June 30
Last Ten Fiscal Years
by Function
Full-time and Part-time City Employees
CITY OF BARSTOW
158
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Packet Pg. 414 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Police:
Arrests 2,672 2,959 2,911 2,762 2,625 2,795 2463 2410 2235 2198 Parking citations issued 266 489 522 201 286 501 408 299 1110 579 Fire Services:
Fire Calls 140 199 188 222** 242 311 212 340 576 499
Medical Aid Calls 3,636 3,452 4,050 4,079** 4,597 5,380 4031 5165 5351 5118 Parks and recreation:
Number of recreation classes 16 14 14 14 14 14 10 10 6 13 Number of facility rentals 139 68 70 99 85 64 52 50 6 27 Sewer:
New connections 30 17 4 2 5 4 4 5 8 6
Average/Millions of
Gallons Sewage Treatment 2.13 2.11 2.11 2.11 1.98 2.03 2.06 2.13 2.15 2.19 Building Department:
Permits 663 870 533 879 720 1,106 905 710 657 686
Fire Permits
Fire Permits * * * 61 - - - - - -
Construction Fire Permits# 88 99 94 93 97 78
Annual Permit to Operate# 323 347 335 323 287 313
Source: City of Barstow
* Data not available
**The City of Barstow assumed dispatching services from County of San Bernardino. Incident tracking has changed due to enhanced software.
# Permits now processed and tracked through the Building & Planning Department of the City of Barstow.
Fiscal Year
Last Ten Fiscal Years
by Function
Operating Indicators
CITY OF BARSTOW
159
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Packet Pg. 415 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Police:
Stations 2 2 2 2 2 2 2 2 2 2
Fire District **
Stations 3 3 3 3 3 3 3 3 3 3
Public Works:
Streets (miles) 91 91 91 90 91 91 91 91 91 104.4
Streetlights 1,081 1,081 1,081 1,081 1,081 1,001 1081 1081 1053 1053 Traffic signals 21 22 22 21 22 22 22 22 22 22
Parks and Recreation:
Parks 10 10 10 10 10 10 10 10 10 10
Community pools 1 1 1 1 1 1 1 1 1 1
Community centers 3 3 3 3 3 3 3 3 3 3
Wastewater:
Sanitary sewers (miles) 117 117 113 117 113 113 113 113 123 123 Storm sewers (miles) 15 16 16 15 16 16 16 16 16 16
Maximum daily treatment capacity
(millions of gallons per day) 4.5 4.5 4.5 4.5 4.5 4.5 4.5 4.5 4.5 4.5 Source: City of Barstow
* Data not available
**Fire District added November 17, 2010
Last Ten Fiscal Years
by Function
Capital Asset Statistics
CITY OF BARSTOW
160
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Packet Pg. 416 Attachment: City of Barstow ACFR Final 12-21-21 rev 2 (4928 : City of Barstow Annual Comprehensive Financial Report) December 17, 2021
To the Honorable Mayor and Members of the City Council
City of Barstow, California
We have audited the financial statements of the governmental activities, the business-type activities, each major fund, and the aggregate remaining fund information of the City of Barstow, California (the City) for the year ended June 30, 2021. Professional standards require that we provide you with information about our responsibilities under generally accepted auditing standards, Government Auditing Standards and the Uniform Guidance, as well as certain information related to the planned scope and timing of our audit.
We have communicated such information in our letter to you dated June 7, 2021. Professional standards also require that we communicate to you the following information related to our audit.
Significant Audit Findings and Other Issues
Qualitative Aspects of Significant Accounting Practices Management is responsible for the selection and use of appropriate accounting policies. The significant accounting policies used by the City are described in the notes to the financial statements. No new accounting policies were adopted and the application of existing policies was not changed during fiscal year 2020-2021. We noted no transactions entered into by the City during the year for which there is a lack of authoritative guidance or consensus. All significant transactions have been recognized in the financial statements in the proper period
Accounting estimates are an integral part of the financial statements prepared by management and are based on management’s knowledge and experience about past and current events and assumptions about future events. Certain accounting estimates are particularly sensitive because of their significance to the financial statements and because of the possibility that future events affecting them may differ significantly from those expected. The most sensitive estimates affecting the City’s financial statements were:
Management’s estimates of its net pension liability and net other post-employment benefits liability based on actuarial valuation specialist assumptions. We evaluated the key factors and assumptions used to develop the net pension liability and net other post-employment benefits liability in determining that they are reasonable in relation to the financial statements taken as a whole.
The financial statement disclosures are neutral, consistent, and clear.
Significant Unusual Transactions
Management is responsible for the policies and practices used to account for significant unusual transactions. No significant unusual transactions have occurred during fiscal year 2020-2021.
Difficulties Encountered in Performing the Audit
We encountered no significant difficulties in dealing with management in performing and completing our audit.
Lance, Soll & Lunghard, LLP 203N.BreaBlvd.,Suite 203 Brea,CA92821 Phone: 714.672.0022
18.b
Packet Pg. 417 Attachment: City of Barstow Audit Communication Letter Final 12-21-21 (4928 : City of Barstow Annual Comprehensive Financial Report) To the Honorable Mayor and Members of the City Council
City of Barstow, California
Corrected and Uncorrected Misstatements
Professional standards require us to accumulate all known and likely misstatements identified during the audit, other than those that are trivial, and communicate them to the appropriate level of management.
Management has corrected all such misstatements. In addition, we detected misstatements as a result of audit procedures which were material, and were subsequently corrected by management. The details of these misstatements are described in a separate letter dated December 17, 2021.
Disagreements with Management
For purposes of this letter, a disagreement with management is a financial accounting, reporting, or auditing matter, whether or not resolved to our satisfaction, that could be significant to the financial statements or the auditor’s report. We are pleased to report that no such disagreements arose during the course of our audit.
Circumstances that Affect the Form and Content of the Auditor’s Report New auditing standards were implemented in fiscal year 2020-2021 related to Statement of Auditing Standards 134, Auditor Reporting and Amendments, Including Amendments Addressing Disclosures in the Audit of Financial Statements, through Statement of Auditing Standards 140, Supplementary Information in Relation to the Financial Statements as a Whole. These standards updated the form and content of the financial statement auditor’s report. The purpose of the change was to present an easier format for users to understand the results of the audit and management’s responsibilities.
Management Representations
We have requested certain representations from management that are included in the management representation letter dated December 17, 2021.
Management Consultations with Other Independent Accountants In some cases, management may decide to consult with other accountants about auditing and accounting matters, similar to obtaining a “second opinion” on certain situations. If a consultation involves application of an accounting principle to the City’s financial statements or a determination of the type of auditor’s opinion that may be expressed on those statements, our professional standards require the consulting accountant to check with us to determine that the consultant has all the relevant facts. To our knowledge, there were no such consultations with other accountants.
Other Audit Findings or Issues Discussed with Management We generally discuss a variety of matters, including the significant events or transactions that occurred during the year, business conditions affecting the City and business plans and strategies that may affect the risks of material misstatements, the application of accounting principles and auditing standards, with management each year prior to retention as the City’s auditors. However, these discussions occurred in the normal course of our professional relationship and our responses were not a condition to our retention.
Other Matters
We applied certain limited procedures to management discussion and analysis, the budgetary comparison schedules for the general fund, measure I special revenue fund, Barstow fire protection district special revenue fund, and grants special revenue fund, the schedule of plan contributions (CalPERS and SBCERA), the schedule of proportionate share of the net pension liability(CalPERS and SBCERA), the
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Packet Pg. 418 Attachment: City of Barstow Audit Communication Letter Final 12-21-21 (4928 : City of Barstow Annual Comprehensive Financial Report) To the Honorable Mayor and Members of the City Council
City of Barstow, California
schedule of changes in net OPEB liability and related ratio (City of Barstow and Barstow fire protection district plans), and the schedule of contributions - OPEB (City of Barstow and Barstow fire protection district plans) which are required supplementary information (RSI) that supplements the basic financial statements.
Our procedures consisted of inquiries of management regarding the methods of preparing the information and comparing the information for consistency with management’s responses to our inquiries, the basic financial statements, and other knowledge we obtained during our audit of the basic financial statements.
We did not audit the RSI and do not express an opinion or provide any assurance on the RSI.
We were engaged to report on the combining statements, individual fund statements and budgetary schedules, which accompany the financial statements but are not RSI. With respect to this supplementary information, we made certain inquiries of management and evaluated the form, content, and methods of preparing the information to determine that the information complies with accounting principles generally accepted in the United States of America, the method of preparing it has not changed from the prior period, and the information is appropriate and complete in relation to our audit of the financial statements. We compared and reconciled the supplementary information to the underlying accounting records used to prepare the financial statements or to the financial statements themselves.
We were not engaged to report on the introductory or statistical sections, which accompany the financial statements but are not RSI. Such information has not been subjected to the auditing procedures applied in the audit of the basic financial statements, and accordingly, we do not express an opinion or provide any assurance on it.
The following new Governmental Accounting Standards Board (GASB) pronouncements were effective for fiscal year 2020-2021 audit:
GASB Statement No. 84, Fiduciary Activities.
GASB Statement No. 90, Majority Equity Interests - an Amendment of GASB Statement Nos. 14 and 61.
GASB Statement No. 98, The Annual Comprehensive Financial Report.
The following GASB pronouncements are effective in the following fiscal years’ audits and should be reviewed for proper implementation by management:
Fiscal year 2022
GASB Statement No. 87, Leases.
GASB Statement No. 89, Accounting for Interest Cost Incurred before the End of a Construction Period.
GASB Statement No. 97, Certain Component Unit Criteria, and Accounting and Financial Reporting for Internal Revenue Code Section 457 Deferred Compensation Plans.
Fiscal year 2023
GASB Statement No. 91, Conduit Debt Obligations.
GASB Statement No. 94, Public-Private and Public-Public Partnerships and Availability Payment Arrangement.
GASB Statement No. 96, Subscription-Based Information Technology Arrangements.
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Packet Pg. 419 Attachment: City of Barstow Audit Communication Letter Final 12-21-21 (4928 : City of Barstow Annual Comprehensive Financial Report) To the Honorable Mayor and Members of the City Council
City of Barstow, California
Restriction on Use
This information is intended solely for the use of City Council and management of the City of Barstow and is not intended to be, and should not be, used by anyone other than these specified parties.
Very truly yours,
Brea, California
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Packet Pg. 420 Attachment: City of Barstow Audit Communication Letter Final 12-21-21 (4928 : City of Barstow Annual Comprehensive Financial Report) INDEPENDENT AUDITORS’ REPORT ON INTERNAL CONTROL
OVER FINANCIAL REPORTING AND ON COMPLIANCE AND OTHER MATTERS
BASED ON AN AUDIT OF FINANCIAL STATEMENTS PERFORMED IN ACCORDANCE
WITH GOVERNMENT AUDITING STANDARDS
To the Honorable Mayor and Members of the City Council
City of Barstow, California
We have audited, in accordance with the auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States, the financial statements of the governmental activities, the business-type activities, each major fund, and the aggregate remaining fund information of the City of Barstow, California, (the City) as of and for the year ended June 30, 2021, and the related notes to the financial statements, which collectively comprise the City’s basic financial statements, and have issued our report thereon dated December 17, 2021.
Internal Control over Financial Reporting
In planning and performing our audit of the financial statements, we considered the City’s internal control over financial reporting (internal control) as a basis for designing audit procedures that are appropriate in the circumstances for the purpose of expressing our opinions on the financial statements, but not for the purpose of expressing an opinion on the effectiveness of the City’s internal control. Accordingly, we do not express an opinion on the effectiveness of the City’s internal control.
Our consideration of internal control was for the limited purpose described in the preceding paragraph and was not designed to identify all deficiencies in internal control that might be material weaknesses or significant deficiencies and therefore, material weaknesses or significant deficiencies may exist that were not identified. However, we identified certain deficiencies in internal control that we consider to be material weaknesses and significant deficiencies.
A deficiency in internal control exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, misstatements on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control such that there is a reasonable possibility that a material misstatement of the entity’s financial statements will not be prevented, or detected and corrected on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance. We consider the deficiencies reported as on the accompanying schedule of findings and questioned costs to be material weaknesses:2021-001 – Grants Reconciliation
Compliance and Other Matters
As part of obtaining reasonable assurance about whether the City’s financial statements are free from material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on financial statements. However, providing an opinion on compliance with those provisions was not an objective of our audit, and accordingly, we do not express such an opinion. The results of our tests disclosed
Lance, Soll & Lunghard, LLP 203N.BreaBlvd.,Suite 203 Brea,CA92821 Phone: 714.672.0022
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Packet Pg. 421 Attachment: City of Barstow Report on IC Final 12-21-21 (4928 : City of Barstow Annual Comprehensive Financial Report) To the Honorable Mayor and Members of the City Council
City of Barstow, California
no instances of noncompliance or other matters that are required to be reported under Government Auditing Standards.
City’s Response to Findings
The City’s response to the findings identified in our audit was not subjected to the auditing procedures applied in the audit of the financial statements and, accordingly, we express no opinion on it.
Purpose of this Report
The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the City’s internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the City’s internal control and compliance. Accordingly, this communication is not suitable for any other purpose.
Brea, California
December 17, 2021
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Packet Pg. 422 Attachment: City of Barstow Report on IC Final 12-21-21 (4928 : City of Barstow Annual Comprehensive Financial Report) To the Honorable Mayor and Members of the City Council
City of Barstow, California
SCHEDULE OF FINDINGS AND QUESTIONED COSTS
Grant Reconciliation
Reference Number: 2021-001
Condition:
During our audit procedures, we noted that grant revenues and expenditures not been properly reconciled at the end of the fiscal year, resulting in audit adjusting entries to reverse amounts that were recorded as revenues but were unearned at June 30, 2021. We recommend that a more thorough review over the grant reconciliation be performed.
Criteria:
Generally Accepted Accounting Principles.
Cause of Condition:
Review oversight
Effect or Potential Effect of Condition:
Revenues were overstated in FY 20-21 due to revenues being recorded rather than unearned revenue.
The amount has been adjusted in the financial statements.
Recommendation:
We recommend that a more thorough review over the grant reconciliation be performed to ensure funds are properly reported as revenues or unearned revenues.
Management’s Response and Corrective Action:
We are in agreement with LSL’s recommendation and will incorporate into next year’s financial close procedures.
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Packet Pg. 423 Attachment: City of Barstow Report on IC Final 12-21-21 (4928 : City of Barstow Annual Comprehensive Financial Report) Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Parks and Recreation
Sabrina Ellis
Community Promotion
Doc ID: 4923
AGENDA ITEM
AGENDA MATTER:
COMMUNITY PROMOTIONAL FUND APPLICATION FROM THE BARSTOW POLICE OFFICER
ASSOCIATION / BARSTOW POLICE ACTIVITY LEAGUE
EXECUTIVE SUMMARY:
The Barstow Police Officer Association / Barstow Police Activity League (P.A.L.), is asking for financial assistance to help offset the costs of the Co-Ed Slow Pitch Softball Tournament to be held March 12, 2022.
DISCUSSION:
The Barstow Police Officer Association / Barstow Police Activity League (P.A.L.) is hosting a Co-Ed Slow Pitch Softball Tournament to be held on March 12, 2022, at the Robert A. Sessions Memorial Sportspark.
The organization is asking for financial assistance to help offset the costs of the event.
Proceeds from the Co-Ed Slow Pitch Softball Tournament will assist with the Barstow Police Activities League (P.A.L.) program and the Barstow Police Officer Association with Baker 2 Vegas team.
Attached is the Community Promotional Fund Application along with supporting documents for Council review
FISCAL IMPACT:
$2,000 of in-kind donations of fee waivers. Cash grant awards to-date for Fiscal Year 2021-2022 total $1,000 charged to 102.150.542.07.755 and in-kind donations of fee waivers totaling $50,650.
RECOMMENDED ACTION:
Approve community promotional fund donation in the amount of $2,000 for waiver of fees for use of the Robert A. Sessions Memorial Sportspark.
19 Packet Pg. 424
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Attachment: PAL - CPF Application (4923 : Community Promotional Fund Application from the Barstow Police Officers Association/ PAL)
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Attachment: PAL - CPF Application (4923 : Community Promotional Fund Application from the Barstow Police Officers Association/ PAL)
19.b
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Attachment: PAL 501 c3 (4923 : Community Promotional Fund Application from the Barstow Police Officers Association/ PAL)
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Attachment: PAL 501 c3 (4923 : Community Promotional Fund Application from the Barstow Police Officers Association/ PAL)
19.b
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Attachment: PAL 501 c3 (4923 : Community Promotional Fund Application from the Barstow Police Officers Association/ PAL)
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Attachment: PAL 501 c3 (4923 : Community Promotional Fund Application from the Barstow Police Officers Association/ PAL) The Barstow Police Officers Association / Barstow Police Activity League Estimate Budget
Softballs - $225
Umpires - $2,000
Awards - $450
19.c
Packet Pg. 431 Attachment: The Barstow Police Officers Association Budget (4923 : Community Promotional Fund Application from the Barstow Police Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Parks and Recreation
Sabrina Ellis
Community Promotion
Doc ID: 4910
AGENDA ITEM
AGENDA MATTER:
COMMUNITY PROMOTIONAL FUND APPLICATION FROM THE INLAND EMPIRE BREASTFEEDING
COALITION
EXECUTIVE SUMMARY:
The Inland Empire Breastfeeding Coalition (IEBC), is asking for financial assistance to help offset the costs of the Get on Board at the Historic Harvey House and Railroad Depot-Maternal Resource Awareness Exposition, to be held on May 14, 2022, at the Harvey House.
DISCUSSION:
The IEBC, is hosting a resource fair to be held on May 14, 2022, at the Harvey House. The organization is asking for financial assistance to help offset the costs of the event.
IEBC serves the Inland Empire and the surrounding Barstow communities, showcasing maternal health that is available for healthcare professionals and pregnant/post-partum patients.
Attached is the Community Promotional Fund Application along with supporting documents for Council review.
FISCAL IMPACT:
$2,000 of in-kind donations of fee waivers. Cash grant awards to-date for Fiscal Year 2021-2022 total $1,000 charged to 102.150.542.07.755 and in-kind donations of fee waivers totaling $50,650.
RECOMMENDED ACTION:
Approve Community Promotional Fund donation in the amount of $2,000 for waiver of fees for use of the Harvey House.
20 Packet Pg. 432
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Attachment: Inland Empire Breastfeeding Application (4910 : Community Promotional Fund Application from Inland Empire Breastfeeding
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Attachment: Inland Empire Breastfeeding Application (4910 : Community Promotional Fund Application from Inland Empire Breastfeeding
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Attachment: Inland Empire Breastfeeding Application (4910 : Community Promotional Fund Application from Inland Empire Breastfeeding
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Attachment: Inland Empire Breastfeeding Application (4910 : Community Promotional Fund Application from Inland Empire Breastfeeding
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Attachment: Inland Empire Breastfeeding Budget (4910 : Community Promotional Fund Application from Inland Empire Breastfeeding Coalition)
INTERNAI REVENUE SERVICE
P. O. BOX 2508
crNcINNATr, OH 45201
Dare: tlAR ?, g Z0Al,
INLAND EMPIRE BREASTFEEDING
COAI,ITION
4579 9TH ST
RIVERSIDE, CA 92501-3001
DEPARTMENT OF THE TREASURY
Employer Identification Number :
71-0875339
DI,N:
17053 055867077
Contact Person:
WILLIAM J BARD
Contact Telephone Number:
(att1 829-5s00
Public Charity Status:
s0e (a) (2)
rD# 3r.333
Dear Applicant:
Our letter dated ,January 2004, stated you would be exempt from Federal income tax under section 501(c) (3) of the Internal Revenue Code, and you would be treated as a public charit,y, rather than as a private foundat,ion, during an advance ruling period.
Based on t,he information you submitted, you are classified as a public charity under the Code section lisLed in the heading of t,his leEter. Since your exempt status was not under consideration, you cont,inue to be classified as an organization exempt from Federal income Eax under section 501(c) (3) of the Code.
Publication 557, Tax-Exempt Status for Your Organization, provides detailed informat,ion about. your rights and responsibil-ities as an exempt organization.
You may request a copy by calling the to}I-free number for forms, (800) 829-3676. Information is also available on our Internet Web Site at www. irs. gov.
If you have general questions about exempt organizations, please caI] our tol-l--free number shown in the heading.
Please keep thi-s letter in your permanent records.
Sincerely yours,
Director, Exempt Organizations
Rulings and Agreements
Let,ter 1050 (DOICG)
20.c
Packet Pg. 438 Attachment: IRS 501 (c) (3) - Inland Empire Breastfeeding Coalition (1) (4910 : Community Promotional Fund Application from Inland Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Parks and Recreation
Sabrina Ellis
Community Promotion
Doc ID: 4911
AGENDA ITEM
AGENDA MATTER:
COMMUNITY PROMOTIONAL FUND APPLICATION FROM BARSTOW COMMUNITY COALITION/DESERT SANCTUARY INC.
EXECUTIVE SUMMARY:
To help offset the costs of hosting a Veteran's Resource Fair on June 30, 2022 to bring awareness to the veteran and military community about services and resources available to residents, the Barstow Community Coalition/Desert Sanctuary Inc. is asking the City to waive the fees associated with the use of the Cora Harper Fitness Center in the amount of $2,000.
DISCUSSION:
The Barstow Community Coalition/Desert Sanctuary Inc. will be hosting a Veteran's Resource Fair on June 30, 2022 to bring awareness to the veteran and military community about services and resources available to residents. To help offset the costs of hosting the event, the organization is asking the City to waive the fees associated with the use of the Cora Harper Fitness Center in the amount of $2,000.
Attached is the Community Promotional Fund Application along with supporting documents for Council review.
FISCAL IMPACT:
$2,000 of in-kind donations of fee waivers. Cash grant awards to-date for Fiscal Year 2021-2022 total $1,000 charged to 102.150.542.07.755 and in-kind donations of fee waivers totaling $50,650.
RECOMMENDED ACTION:
Approve Community Promotional Fund in-kind donation in the amount of $2,000 for waiver of fees for use of the Cora Harper Center.
21 Packet Pg. 439
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Attachment: Barstow Community CPF Application (4911 : Community Promotional Fund Application from Barstow Community Coalition/Desert
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Attachment: Barstow Community CPF Application (4911 : Community Promotional Fund Application from Barstow Community Coalition/Desert
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Attachment: Barstow Community CPF Application (4911 : Community Promotional Fund Application from Barstow Community Coalition/Desert
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Attachment: Barstow Community CPF Application (4911 : Community Promotional Fund Application from Barstow Community Coalition/Desert
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Packet Pg. 444 Attachment: IRS 501 c3 - Desert Santuary (4911 : Community Promotional Fund Application from Barstow Community Coalition/Desert Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Parks and Recreation
Sabrina Ellis
Community Promotion
Doc ID: 4926
AGENDA ITEM
AGENDA MATTER:
COMMUNITY PROMOTIONAL FUND APPLICATION FROM BABIES SO SPECIAL EXECUTIVE SUMMARY:
Babies So Special, is asking for financial assistance to help offset the costs of the Caleb's Superhero 5K Color Run to be held on March 26, 2022, at the Robert A. Sessions Memorial Sports Park.
DISCUSSION:
Babies So Special is hosting a fundraiser on March 26, 2022, called Caleb's Superhero 5K Color Run at the Robert A. Sessions Memorial Sports Park to raise money and bring awareness to the disabled community. The event will encompass the whole family/community and will feature music, dancing, food vendors, face painting, photo booth, magician, stand-up comedy, and more.
FISCAL IMPACT:
$2,000 of in-kind donations of fee waivers. Cash grant awards to-date for Fiscal Year 2021-2022 total $1,000 charged to 102.150.542.07.755 and in-kind donations of fee waivers totaling $50,650.
RECOMMENDED ACTION:
Approve Community Promotional Fund donation in the amount of $2,000 for waiver of fees for use of the Robert A. Sessions Memorial Sports Park.
22 Packet Pg. 445
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Packet Pg. 446
Attachment: Color Run - CPF (4926 : Caleb's Superhero 5K Color Run)
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Packet Pg. 447
Attachment: Color Run - CPF (4926 : Caleb's Superhero 5K Color Run)
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Packet Pg. 448 Attachment: Color Run (4926 : Caleb's Superhero 5K Color Run)
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Packet Pg. 449
Attachment: 501c (4926 : Caleb's Superhero 5K Color Run)
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Packet Pg. 450
Attachment: 501c (4926 : Caleb's Superhero 5K Color Run)
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Packet Pg. 451
Attachment: Budget - Color Run (4926 : Caleb's Superhero 5K Color Run) Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Building
Christopher Heldreth
Ordinance
Doc ID: 4916
AGENDA ITEM
AGENDA MATTER:
ADOPTION OF ORDINANCE APPROVING DEVELOPMENT AGREEMENT FOR QUALITY LIFE INC.
COMMERCIAL CANNABIS APPLICATION
EXECUTIVE SUMMARY:
Staff recommends the City Council adopt Ordinance No. 985-2022 approving Quality Life Inc.’s application for a Commercial Cannabis Dispensary and Non-Store Front Delivery permit, Cannabis Development Agreement, Conditional Use Permit, and related land use entitlements. The Planning Commission recommended approval at its December 13, 2021 meeting. The project is exempt from review under the California Environmental Quality Act, per CEQA Guidelines, Cal Code of Regs., tit. 24, sections 15301, 15302, and 15303, 15061, and 15378.
DISCUSSION:
On November 8, 2016, the Control, Regulate, & Tax Adult Use of Marijuana Act (“AUMA”) was approved by California voters via Proposition 64. The AUMA permits local jurisdictions to regulate and/or ban adult use cannabis cultivation, distribution and delivery, transportation, manufacturing, testing laboratories, dispensaries, and microbusiness facilities.
In June 2021, the City Council passed Ordinance No. 974-2021 which added Chapter 19.27 to the Barstow Municipal Code to permit commercial cannabis activities in the City. The ordinance went into effect on July 7, 2021. On October 4, 2021, the City Council adopted Ordinance No. 977-2021, amending the City’s cannabis regulatory program ordinance.
All cannabis businesses must enter into a development agreement with the City that will be subject to council approval through the adoption of an ordinance under Government Code Section 65865. This application came before the Planning Commission for review at its December 13, 2021 meeting as all land use permits and statutory development agreements must first be presented to the Planning Commission. The Planning Commission recommended approval.
At its January 3, 2022 meeting, the City Council introduced the ordinance approving the development agreement and related entitlements for this cannabis facility.
Application
Quality Life Inc. is applying for a permit for a Commercial Cannabis Dispensary and Non-Store Front Delivery.
Applicant’s representative, who will be listed on the permit if one is used and will be the point of contract for the Planning Department is Michael Wilhoit.
Applicant Information
Quality Life Inc. is a corporation. They do not have a federal tax identification number and are properly registered with the California Secretary of State.
The company has the following corporate officers:
23 Packet Pg. 452
Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Building
Christopher Heldreth
Ordinance
Doc ID: 4916
AGENDA ITEM
CEO, CFO, Secretary: Michael A. Wilhoit
Members of the applicant group have no relevant criminal convictions listed on their permit application.
Members of the applicant group have no listed unfair business practices listed on their permit application.
Location Information
Quality Life Inc. is a applying for a Commercial Cannabis Dispensary and Non-Store Front Delivery permit at 2841 Lenwood Rd. Barstow, CA 92311. (APN #0428-211-31). The total square footage of the structure applicant will occupy on the site is 1,563 square feet.
The applicant is not the owner of the property but has provided the City with a copy of the Landlord Use Disclosure & Authorization for a Cannabis Facility agreement between applicant and owner.
Acknowledgment of City Standards
The managing members of the applicant group have submitted a signed acknowledgment of the City’s Cannabis operating standards as set forth in the City’s Municipal Code.
Information and Release Form
The managing members of the applicant group have signed and consented to the release of information necessary for the City to verify and confirm the information contained in their permit application.
On-Site Member Contact Statement
At time of application submittal the applicant has designated Michael A. Wilhoit as the on-site manager and the designated representative to whom the public or City can provide notice to if there are operating problems or issues related to the Cannabis Facility. The on-site manager is subject to change, however the applicant is required to notify the City of Barstow if/when the on-site manager changes.
Conditional Use Permit
Applicant has submitted the required conditional use permit, including the following required documents:
seven sets of the plans in 24” x 36”, filing fees, notification packages, title report, existing site plan, proposed site plan, conceptual architectural renderings, an electronic copy of these plans, and any special studies as determined by the Community Development Department.
Environmental Information and Checklist
Applicant has submitted the required environmental information and checklist.
Security Plan
The applicant has submitted a security plan which contains: 24-hour security surveillance cameras, sensors, panic buttons, alarm system, 24-hour security personnel, and a lock system not solely controlled by an electronic access panel. Both Barstow Police Department Police Chief and Captain have reviewed the applicant’s security plan and it appears to meet all standards.
DOJ Live Scans for Owners, Managers, Employees, Volunteers, and Security Personnel Applicant has submitted the required Department of Justice Live Scans for owners, managers, employees, volunteers, and security personnel.
23 Packet Pg. 453
Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Building
Christopher Heldreth
Ordinance
Doc ID: 4916
AGENDA ITEM
Operations Plan
Applicant has submitted the required Operations Plan in accordance with the City’s Municipal Code. The following features are present in the Operations Plan: limiting access area, keeping cannabis and cannabis products in a secure manner, designating a security representative/liaison, a storage and transportation plan, cooperation with the City, and notification to Police Department with provisions. In addition, both Barstow Police Department and City of Barstow Attorney have reviewed the required Operations Plan.
Application Fees
Applicant has submitted the required application fees related to this permit application.
Council Decision to Approve introduction of the Ordinance on January 3, 2022 The City Council received public comments at a noticed public hearing and voted to approve introduction of the ordinance approving the development agreement and related entitlements, with certain modifications to the proposed development agreement. The attached final ordinance and development agreement incorporate the City Council’s requested changes to the development agreement.
FISCAL IMPACT:
N/A
RECOMMENDED ACTION:
Staff recommends the City Council adopt Ordinance No. 985-2022 approving Quality Life Inc.’s application for a Commercial Cannabis Dispensary and Non-Store Front Delivery permit, Cannabis Development Agreement, Conditional Use Permit, and related land use entitlements. The Planning Commission recommended approval at its December 13, 2021 meeting. The project is exempt from review under the California Environmental Quality Act, per CEQA Guidelines, Cal Code of Regs., tit. 24, sections 15301, 15302, and 15303, 15061, and 15378.
23 Packet Pg. 454
274092.1
ORDINANCE NO. 985-2022
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF BARSTOW APPROVING A CANNABIS LICENSE APPLICATION FOR QUALITY LIFE INC. AND DEVELOPMENT AGREEMENT WITH
QUALITY LIFE INC. FOR A COMMERCIAL CANNABIS DISPENSARY & NON-STORE FRONT DELIVERY LOCATED AT 2841 LENWOOD RD,
BARSTOW, CA 92311
WHEREAS, California voters approved Proposition 215 (Health and Safety Code Section 11362.5), entitled the Compassionate Use Act (CUA), in 1996, which exempts patients and their primary caregivers from criminal prosecution or sanctions under H&S Code Sections 11357 and 11358 for qualified use and cultivation of medical cannabis; and WHEREAS, the California Legislature passed Senate Bill 420 (H&S Code Sections 11362.7 et seq.) in 2003 to create the Medical Marijuana Program (MMPA), which established a voluntary program for the issuance of medical cannabis identification cards for qualified patients, set limits on the amount of cannabis any individual could possess, and provided an exemption from state criminal liability for persons "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes"; and
WHEREAS, in November 2016, California voters approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act ("AUMA"), which established a state licensing and regulatory system for commercial cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, delivery, or sale of recreational marijuana and marijuana products; and
WHEREAS, on June 27, 2017, the Governor signed the Medicinal and Adult-Use Cannabis Regulation and Safety Act ("MAUCRSA"), consolidating the AUMA with previous state law regarding commercial medical marijuana activities to create one state licensing system for commercial activities related to medical and recreational marijuana; and WHEREAS, both the AUMA and MAUCRSA authorize the City to further regulate or completely prohibit the establishment or operation of commercial marijuana activities within its limits, even such activities that may be licensed under state law; and WHEREAS, the City's power to regulate or completely prohibit commercial marijuana activities under the AUMA and MAUCRSA is consistent with the California Supreme Court's decision in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 7; and
WHEREAS, the California Attorney General's August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or other concentration of marijuana in any location or premises without adequate security increases the risk that nearby homes or businesses may be negatively
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Packet Pg. 455 Attachment: Quality Life Inc. Ord. 985-2022 (4916 : Adoption of Quality Life DDA Ordinance) 2 274092.1
impacted by nuisance activity such as loitering or crime; and WHEREAS, the California Planning and Zoning Law (Gov. Code, § 65000 et seq.) authorizes the City to adopt and administer zoning laws, ordinances, rules, and regulations; and
WHEREAS, the City of Barstow passed Ordinance No. 974-2021 on June 7th 2021 to begin the process of allowing Cannabis sales; and WHEREAS, the City of Barstow passed Ordinance No. 977-2021 on October 4th 2021, adopting land use laws for Cannabis sales and requiring applicants to execute a development agreement with the City before beginning operation; and WHEREAS, no cannabis business may operate in the City of Barstow unless first issued a permit by the City; and
WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the California Legislature adopted Government Code section 65864 et seq. (the “Development Agreement Statute”), which authorizes the City and an individual with an interest in real property to enter into a development agreement that establishes certain development rights in real property that is subject to a development agreement application; and
WHEREAS, the proposed project is consistent with the Barstow General Plan and the California Environmental Quality Act; and
WHEREAS, Quality Life Inc. proposes to improve, develop and use real property to operate a Commercial Cannabis Dispensary and offer Non-Store Front Delivery at 2841 Lenwood Rd. Barstow, CA 92311 (APN #0428-211-31) and has properly submitted a completed cannabis license application; and WHEREAS, City and the Quality Life Inc. seek to enter into a development agreement for the Project (the “Development Agreement”) pursuant to the Development Agreement Statute and all applicable local and state laws; and WHEREAS, the Planning Commission approved Resolution No. 558-2021 finding that an ordinance approving the Development Agreement will allow the City to adequately regulate and address all impacts of the Project in the City in accordance with state law; and
WHEREAS, the City Council finds that the ordinance is in the best interest of the health, welfare, and safety of the public.
NOW THEREFORE, the City Council of the City of Barstow hereby ordains as follows:
Section 1. Incorporation of Recitals. The above set forth recitals and findings are true and
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correct and incorporated herein by reference, as if set forth herein in full.
Section 2. Finding Regarding the Development Agreement. Based upon the foregoing facts and findings for DA 1 the City Council hereby determines as follows:
A. DA 1 was reviewed and deemed correct and in compliance with Government Code Section 65865.2 and Chapter 19.46 of the Barstow Municipal Code; and B. DA 1, if approved, is in the best interests of the City because the commercial cannabis dispensary increases commercial vibrancy in the City; and, C. DA 1 is consistent with the actions, goals, objectives, and policies of the City's General Plan and Zoning Regulations because the project promotes local opportunities for commerce and engagement, and
D. The application to the City was made on forms approved, and contains all information required by the Director and is filed with the Department in compliance with Chapter
19.46; and
E. The application was accompanied by all lawfully required documents, materials, and information; and,
F. With the adoption of this ordinance and development agreement and notwithstanding the requirements in Chapter 19.46 of the Barstow Municipal Code and the City’s Zoning Regulations, the City Council approves the Proposed Project.
Section 3. Approvals. In view of all the evidence and based on the foregoing findings the City Council approves DA 1 and grants a Notice of Exemption for the Proposed Project, subject to the Conditions of Approval in Planning Commission Resolution No. 558-2021 Section 4. Authorization to Execute Development Agreement. Pursuant to Barstow Municipal Code Chapter 19.46, the City Council directs the City Manager and the City Attorney to prepare a development agreement embodying the terms and conditions of the Proposed Project as conditionally approved and authorizes the City Manager to execute the development agreement, which shall be substantially consistent with the proposed development agreement attached as Exhibit "A."
Section 5. CEQA. This ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines§§ 15060(c)(2), 15060(c)(3), 15061(b)(3) and 15378(b)(4). This ordinance will not result in a direct or reasonably foreseeable indirect physical change in the environment; it does not involve a "project" as defined by CEQA Guidelines § 15378; and it is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. It can be seen with certainty that there is no possibility this ordinance may have a significant effect on the environment. Further the City previously approved Ordinance No. 974-2021 on June 7, 2021 and Ordinance No. 977-2021 on
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October 4, 2021 and those Ordinances were exempt from CEQA under Business and Professions Code section 26055(h) which exempts from CEQA review the adoption of an ordinance, rule, or regulation, by a local jurisdiction that requires discretionary review and approval of permits, licenses, or other authorizations to engage in commercial cannabis activity. This Ordinance now acts to amend the Barstow Municipal Code as to procedural requirements.
Section 6. Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable.
Section 7. Effective Date. This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937.
Section 8. Construction. To the extent the provisions of the Barstow Municipal Code as amended by this Ordinance are substantially the same as the provisions of that Code as it read prior to the adoption of this ordinance, they shall be read as continuations of those earlier provisions and not as new enactments.
Section 9. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall give notice of its adoption as required by law. Pursuant to Government Code Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text.
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Packet Pg. 458 Attachment: Quality Life Inc. Ord. 985-2022 (4916 : Adoption of Quality Life DDA Ordinance) 5 274092.1
PASSED, APPROVED AND ADOPTED this 7
th day of February, 2022.
__________________________________
Paul Anthony Courtney, Dr. B.A., Mayor
ATTEST:
______________________________
Andrea Flores, City Clerk
I, Andrea Flores, City Clerk for the City of Barstow, California, and ex-officio Clerk of the City Council, do hereby certify under penalty of perjury that the foregoing is a true and correct copy of Ordinance No. 985-2022, which was introduced at a regular meeting of the City Council of the City of Barstow held on the 3
rd day of January, 2022, and adopted at the regular meeting of the City Council of the City of Barstow on the 7
th day of February, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
____________________________
Andrea Flores, City Clerk
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Packet Pg. 459 Attachment: Quality Life Inc. Ord. 985-2022 (4916 : Adoption of Quality Life DDA Ordinance) Quality Life – Updated Development Agreement – Final for Council Adoption 1 273194.1
COMMERCIAL CANNABIS BUSINESS DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF BARSTOW AND
QUALITY LIFE INC./DEVELOPER/SAM & DANS GROUP LLC/OWNER
THIS DEVELOPMENT AGREEMENT (this “Agreement”) is made and entered into this 1st day of December, 2021, (the “Execution Date”), by and between the CITY OF BARSTOW, a California municipal corporation (“City”) and Michael Wilhoit / Quality Life (“Operator”) and Siyavoush (Sam) Soleimani / Sam & Dans Group LLC (“Owner”). City, Operator, and Owner are sometimes referenced together herein as the “Parties.” In instances when a provision hereof applies to each of the Parties individually, either may be referenced as a “Party.” The Parties hereby jointly render the following statement as to the background facts and circumstances underlying this Agreement:
RECITALS
WHEREAS, the State of California enacted California Government Code Sections 65864 et seq. (“Development Agreement Statutes”) to authorize municipalities to enter into development agreements with those having an interest in real property to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development in connection with the development of real property within their jurisdiction; and
WHEREAS, the purpose of the Development Agreement Statutes is to authorize municipalities, in their discretion, to establish certain development rights in real property for a period of years regardless of intervening changes in land use regulations, to vest certain rights in the Owner, and to meet certain public purposes of the local government; and WHEREAS, as authorized by the Development Agreement Statutes, the City has adopted Ordinance No. 934-201 to add Barstow Municipal Code Chapter 19.46, establishing the procedures and requirements for the consideration of development agreements with the City; and
WHEREAS, on November 8, 2016, California voters enacted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, also known as the Adult Use of Marijuana Act ("AUMA"), which establishes a comprehensive system to legalize, control, and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical cannabis, including cannabis products, for use by adults 21 years and older, and to tax the growth and retail sale of cannabis for nonmedical use; and
WHEREAS, on June 27, 2017, Governor Jerry Brown signed into law the Medicinal and Adult-Use Cannabis Regulation and Safety Act ("MAUCRSA"), which creates a single regulatory scheme for both medicinal and adult-use cannabis businesses. MAUCRSA retains the provisions
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in MCRSA and AUMA that granted local jurisdictions control over whether businesses engaged in Commercial Cannabis Activity may operate in a particular jurisdiction; and WHEREAS, on June 7, 2021, the City Council of the City of Barstow adopted Ordinance No. 974-2021 to permit commercial cannabis activities in the City; and WHEREAS, on October 4, 2021 the City Council of the City of Barstow adopted Ordinance No. 977-2021 amending the zoning code to allow for commercial cannabis as a permitted use in certain zones; and
WHEREAS, Owner currently holds a legal or equitable interest in real property considered in this Agreement which has a development area approximately 1563 square feet located at 2841 Lenwood Rd #2, City of Barstow, State of California (the “Site”). The Site includes Assessor’s Parcel Number: 0428-211-31-0000, and is more fully described in Exhibit A and shown on the map in Exhibit B. Both exhibits being attached hereto and incorporated herein by this reference;
WHEREAS, presently, Operator has a leased interest in land owned by Owner for the purpose of commercial cannabis related activities which shall include Commercial Cannabis Retail Storefront with Delivery. Such Commercial Cannabis facilities shall operate in accordance with all applicable provisions of Business and Professions Code §§26000-26231.2; California Health and Safety Code Safety Code §§ 11357-11362.9 and 11362.7- 11362.85; Revenue and Taxation Code §§ 34010-34021.5; Vehicle Code §§ 2429.7 and 23222; Water Code §§ 1831, 1847, and 13276; and the City of Barstow Municipal Code as it applies to such facilities (collectively the “Applicable Cannabis Laws”). Prior to operating Operator shall be required to obtain approval of this Agreement, a conditional use permit, and a Commercial Cannabis Permit from the City, and all related state and other permits and licenses prior to the operation of same, pursuant to Barstow Municipal Code Chapter 19.27 et seq.; WHEREAS, Operator intends upon obtaining a California State License issued, pursuant to Applicable Cannabis Laws, to operate a Commercial Cannabis Retail Storefront with Delivery at the Site. The definition of "Owner" hereunder shall mean and refer to the fee simple owner while any authorized tenant of the Site to the extent such party holds or is covered by a Commercial Cannabis Permit shall be known as Operator;
WHEREAS, on December 1, 2021 Operator applied to this City for a Commercial Cannabis Permit (hereinafter "CCP”) to conduct Commercial Cannabis Activities. No such activities are allowed or authorized without a Development Agreement, a conditional use permit, a Commercial Cannabis Permit, and all requirements pursuant to City Ordinance No. 977-2021, including all applicable requirements pursuant to the Barstow Municipal Code.
WHEREAS, Owner presently intends to develop and open a Commercial Cannabis Retail Storefront with Delivery on the Site consistent with the Applicable Cannabis Laws and Project Approvals (known as the “Project”). The Project will include Commercial Cannabis Retail
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Packet Pg. 461 Attachment: Quality Life - Final DDA Completed by City (Adoption) (4916 : Adoption of Quality Life DDA Ordinance) Quality Life – Updated Development Agreement – Final for Council Adoption 3 273194.1
Storefront with Delivery (under the Applicable Cannabis Laws but would not include cannabis cultivation, distribution, or manufacturing at the Project Site without further authorization by the City).
WHEREAS, the Project will consist of: one unit totaling approximately 1563 square feet.
The complex will employ approximately 18 employees total, with 8 employees working the first shift and 5 employees working the second shift. The building will be divided into major spaces for retail show room, break room, secured inventory room, restroom and lobby as follows:
Retail Storefront: The facility would include a commercial cannabis business facility where cannabis, cannabis products, or devices for the use of cannabis or cannabis products are offered, either individually or in any combination, for retail sale to customers at a fixed location, including an establishment that also offers delivery of cannabis and cannabis products as part of a retail sale, which are open to the public, with all business activities conducted in accordance with state law, including, but not limited to specified hours of operation.
General Business Offices: The facility will be open from 6 a.m. to 10 p.m., Monday through Sunday with 8 employees working the first shift and 5 employees working the second shift.
Parking/Loading/Access: The proposed project provides 63 parking spaces, including one accessible van space. Loading will take place on the north side of the structure. The public access will be through a private street that will intersect into Mercantile Way. In no event will loading occur within the public right-of-way. Within the site, access to the structures will be through the secured back-office entrance. Pedestrian walkways within the structure and on the north and west sides of the structure allow pedestrian circulation throughout the site. The project complies with the CALGreen Tier 1 by incorporating stormwater pollution prevention measures, installing energy- and water-efficient equipment, and planting native and droughttolerant landscaping at the front of the property.
Security: The project will secure the facility against unauthorized entry by installing security lights on the exterior of the building to illuminate the side yards and parking area, installing commercial-grade locks, installing an alarm and video surveillance system, establishing procedures for identifying authorized persons, establish inventory controls, and install a secure surveillance vault to maintain the integrity of records. In addition, the applicant will engage a licensed security company to provide an operational security plan in compliance with City Ordinance No. 977-2021.
The proposed layout of the site is as shown in the attached Site and Floor Plans, in Exhibit C.
Hours of Operation:
6 AM to 10 PM for general business hours 24-hours for internal operations
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Packet Pg. 462 Attachment: Quality Life - Final DDA Completed by City (Adoption) (4916 : Adoption of Quality Life DDA Ordinance) Quality Life – Updated Development Agreement – Final for Council Adoption 4 273194.1
WHEREAS, all procedures of the California Environmental Quality Act (“CEQA”), California Public Resources Code §21000 et seq., and the CEQA guidelines, title 14 of the California Code of Regulations, chapter 3, §15000 et seq. have been satisfied; WHEREAS, the City has given public notice of its intention to adopt this Agreement and has conducted public hearings thereon pursuant to California Government Code §65867. The City has found that the provisions of this Agreement and its purposes are consistent with the objectives, policies, general land uses and programs specified in City’s General Plan, zoning code and municipal ordinances;
WHEREAS, the City, in entering into this Agreement, acknowledges that certain City obligations hereby assumed shall survive beyond the terms of the present Council members, that this Agreement will serve to bind City and future Councils to the obligations hereby undertaken, and that this Agreement shall limit the future exercise of certain governmental and proprietary powers of City. By approving this Agreement, the Council has elected to exercise certain governmental powers at the time of entering into this Agreement rather than defer its actions to some undetermined future date. The terms and conditions of this Agreement have undergone extensive review by City and the Council and have been found to be fair, just and reasonable. City has concluded that the pursuit of the Project will serve the best interests of its citizens and that the public health, safety and welfare are best served by entering into this obligation. Owner has represented to City that it would not consider or engage in the Project absent City approving this Agreement;
WHEREAS, the City agrees that Owner’s land use entitlements for the Project shall vest for the term of this Agreement as described below;
WHEREAS, after conducting a duly noticed hearing on December 13, 2021, in conjunction with the City’s applicable ordinances and resolutions, the Planning Commission of the City reviewed, considered and approved environmental clearance and recommended approval of the execution of this Agreement to the City Council. The Planning Commission found the Project: consistent with the objectives, policies, general land uses and programs specified in the general plan; compatible with the uses authorized in the City’s zoning laws; in conformity with the public necessity, public convenience, general welfare and good land use practices; will not be detrimental to the health, safety and general welfare of the city; will not adversely affect the orderly development of property or the preservation of property values; and will have a positive fiscal impact on the City;
WHEREAS, after conducting a duly noticed hearing on January 3, 2022 in conjunction with the City’s applicable ordinances and resolutions, and after independent review and consideration, the City Council approved the execution of this Agreement by adopting the Enabling Ordinance, Ordinance No. 985-2022, the ordinance that approves this development agreement. The City Council found the Project: consistent with the objectives, policies, general land uses and programs specified in the general plan; compatible with the uses authorized in the City’s zoning laws; in conformity with good land use practices; will not be detrimental to the
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health, safety and general welfare of the City; and is in the best interest of the City of Barstow and its residents.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
1. Government Code and Municipal Code Required Elements a. Description of Property. Land situated in the City of Barstow, County of San Bernardino, State of California; whose street address is 2841 Lenwood Rd #2, City of Barstow, State of California (the “Site”). The Site includes Assessor’s Parcel Number: 0428-211-31-0000. b. Owner and Other Person with Legal or Equitable Interest.
Owner: Siyavoush (Sam) Soleimani/Sam & Dans Group LLC,
Nature of Interest: Owner in fee simple.
Operator: Michael Wilhoit/Quality Life Inc.
Nature of Interest: 5-year lease with option to renew.
If Owner is not the fee simple owner of the Site, check box below:
[x] Operator represents and warrants that the property owner has consented in writing to the execution and recordation of this Agreement against the Site. c. Permitted Uses. The subject property may be used Commercial Cannabis Retail Storefront with Delivery as presently authorized under City Ordinance No. 977-2021, including Barstow Municipal Code §§ 19.27 et seq., and for any other use as authorized under applicable provisions of the Barstow Municipal Code.
d. Zoning. Owner shall guarantee that such activities outlined in Owner’s Commercial Cannabis Permit Application (“Application”) conducted pursuant to this Agreement and under the Commercial Cannabis Permit shall comply with the City’s municipal code, including the zoning ordinance and any and all development and construction requirements contained therein. Owner shall not conduct any business under this Agreement or under the Commercial Cannabis Permit without having obtained all necessary permits, licenses, and approvals from the City and State of California.
e. Reservation or Dedication of Land for Public Purposes. Sufficient roadway, sidewalk, and utility easements shall be reserved or dedicated to City for such purposes, as depicted in Exhibit D.
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2. Term
a. This Agreement, along with the issued the Cannabis Business Permit and Conditional Use Permit shall commence on the Effective Date and it shall end five (5) years from the starting date. This Agreement shall be extended for one (1) additional five (5) year period following the expiration of the initial five (5) year term upon the occurrence of all of the following:
(i) Operator shall give written notice to the City no later than one hundred twenty (120) days before the expiration of the initial five (5) year term that the Owner desires to extend this Agreement for an additional five (5) year period;
(ii) Operator shows adequate evidence to the City that it has a legal and/or equitable interest in the Property and/or will have such interests for the duration of the extended term of the Agreement;
(iii) Operator shall deposit all fees per the Council-adopted fee schedule necessary for processing the extension request and drafting necessary documentation; (iv) Operator shall comply with all provisions of Ordinance No. 977-2021 adopting this Agreement, Barstow Municipal Code Chapter 19.27 et seq., all terms imposed by the City-issued Commercial Cannabis Permit, and City-Issued Conditional Use Permit, and all other requirements of applicable City law and permits; and
(v) Operator has completed and built the commercial cannabis facility contemplated by the Agreement and has commenced and continues to operate it in compliance with and shall not be in default of any provision of any applicable law, including Barstow Municipal Code Chapter
19.27, or any agreement between City and Owner relative to the development of the Property or of any condition of approval imposed upon any entitlement granted by the City relative to the development of the Property or cannabis operations for which Owner has been given a written notice to cure by the City and for which Owner has not cured or commenced to cure such default within thirty (30) days, if and as provided by such agreement or condition of approval.
b. The Parties may agree to extend this Agreement for additional five (5) year periods, provided that the same conditions in Section 2(a) continue to be met and that the City has expressly approved a further five (5) year renewed term. The City reserves the right to conditionally approve and/or shorten the length of additional renewal periods. The City shall give at least 180 days’ notice of any proposed nonrenewal of this Agreement.
3. Operator’s Site and Floor Plans, Infrastructure/Utility Plans, and American Disabilities Act (“ADA”) Plans.
a. Operator’s site plan and floor plan for the facility are attached hereto as Exhibit C and incorporated into the Application.
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b. A preliminary landscape plan shall be prepared by the Operator and reviewed and approved by the City Manager and/or the Director of Public Works & Development Services, or their respective designees. A final landscape plan shall be prepared and submitted in conjunction with building and site improvement plans prior to issuance of building permits for construction activities. All final landscape plans must comply with the Building Code. c. An exterior signage plan shall be prepared and reviewed and approved by the City Manager and/or the Director of Public Works & Development Services, or their respective designees, in accordance with the procedures and requirements of the Barstow Municipal Code.
4. Facility Operations
a. Standard Operating Procedures. Operator is a lawful entity that will only sell to other legally permitted persons and entities under the California Cannabis Laws. Prior to operating a Commercial Cannabis Retail Storefront with Delivery, Operator shall be required to obtain a Commercial Cannabis Permit, this Agreement, a conditional use permit, and all requirements pursuant to said entitlements, from the City pursuant to the Enabling Ordinance and Chapter
19.27 of the Barstow Municipal Code. Further, Operator may operate such cannabis-related activities as permitted in accordance with California state laws and regulations, as may be amended, including without limitation, as long as such activity is not inconsistent with Enabling Ordinance, this Development Agreement, the City-issued Commercial Cannabis Permit, the Cityissued conditional use permit, and the Barstow Municipal Code.
During the term of this Agreement, Operator shall lawfully operate in accordance with all state and local laws, and all City cannabis permittee regulations and procedures. Operator shall employ exemplary operating procedures to comply with state and local laws. Operator’s facility shall employ safety and security measures for the safety and security of its employees, visitors, vendors, and neighboring communities and properties.
Operator shall fully comply with the City’s Operating Standards regulating the proposed Commercial Cannabis Activity as set forth in Chapter 19.27 of the Barstow Municipal Code, and those required by the Enabling Ordinance No. 977-2021, and such more specific operational requirements set forth in Exhibit E, "Operational and Business Standards" as adopted by the City Manager, attached hereto.
b. Security Plan. Operator shall secure approval of its proposed security plan by the Barstow Police Department prior to opening. The security plan shall include, at a minimum and as appropriate, provisions for video surveillance, perimeter fencing and security, protection of the building(s) from vehicle intrusion, cash handling procedures, internal accounting controls, product handling and storage procedures, and a professionally monitored alarm system.
Equipment and systems used for video surveillance and building alarms shall be approved by City.
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Video surveillance shall include, at a minimum, all site and facility entrances and access points, all spaces accessible by the public, all secured areas of the facility with restricted access, all interior spaces and rooms where cannabis products are handled and processed, shipping and receiving areas, cash storage areas, and other areas necessary to protect the safety of employees and the public and to ensure cannabis products are received, handled, stored, packaged, shipped, and distributed in compliance with applicable state and local laws and regulations. The video surveillance system shall be web-based with direct access provided to the Barstow Police Department upon request.
The security system shall also include sensors to detect entry and exit from all secure areas, panic buttons in appropriate locations, and a professionally monitored alarm system with glass breakage sensors and motion detectors.
Operator shall employ properly trained and licensed third-party security personnel to protect the welfare and safety of Operator and employees, and to ensure public safety to the neighboring community. Security personnel may be armed so long as proper licensing and insurance requirements are followed and met by the third-party operator providing such security services.
c. Fire Department Approval. Operator shall not operate any facility, and no permit, license, or other approval issued by City shall be valid unless and until the Barstow Fire Protection District has approved Operator’s site plan, floor plan, safety plan, and any other plans that require its approval.
d. Possession of Firearms. Except for licensed and bonded security personnel, no person employed by Operator shall be in possession of any firearm while on the premises or location without having first obtained a license from the appropriate state or local agency authorizing the person to be in possession of such firearm. Every such person in possession of a firearm while on the premises or location must provide the City Manager and the Barstow Police Department, ten (10) days before bringing the firearm onto the premises, with the following:
1) A copy of the license issued to the person by the appropriate state or local agency authorizing him or her to possess such firearm;
2) A copy of his or her law enforcement identification (if he or she is employed by a law enforcement agency).
3) A copy of his or her California driver’s license or California identification card; and 4) Any other information reasonably required by the Barstow Police Department to show that the individual is in compliance with the provisions of all laws regarding the possession and use of a firearm.
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e. Identification Display. Each Operator, manager, employee, and individual member engaged in operating the Commercial Cannabis Retail Storefront with Delivery facility shall at all times while engaged in the duties of his or her position wear in plain sight, on his or her person and at chest level, a valid identification badge, issued by Operator. f. Employee Background Checks/Procedures for Inventory Control to Prevent Diversion of Cannabis. Only employees who receive clearance from Operator shall be permitted to enter Operator’s facility. Each employee will have to meet a criminal background investigation conducted by the Barstow Police Department, which at minimum shall include a LiveScan criminal history check, which City shall make a good faith effort to facilitate within a reasonable time following the issuance of a Commercial Cannabis Permit(s) or license(s) to Operator.
Operator shall take all necessary and reasonable steps to prevent the distribution of any of its cannabis products to minors; prevent revenue from the sale or distribution of its cannabis and/or infused products from going to criminal enterprises, gangs and cartels; prevent the diversion of cannabis from California to any other state; prevent state-authorized cannabis activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; prevent violence and the use of firearms in the retail sales of cannabis; discourage and educate against drugged driving and the exacerbation of other adverse public health consequences associated with cannabis use; disavow growing cannabis on public lands that creates attendant public safety and environmental dangers posed by such illegal uses; and discourage and educate against cannabis possession or use on federal property. g. All commercial cannabis products will undergo a quality assurance review in accordance with state law prior to distribution. Inventory procedures will be utilized for tracking and taxing purposes by the state. Operator shall employ an efficient record-keeping system to make transparent its financing, testing, and adverse effect recording, as well as recall procedures.
Operator shall employ an efficient record-keeping system that will reflect its financing, testing, and adverse effect recording and product recall procedures. h. Packaging of Commercial Cannabis and Infused Products. All commercial cannabis products shall be packaged and labeled as required by California Cannabis Law and applicable requirements and regulations issued by the State of California pursuant thereto. In addition to those packaging and labeling requirements, and packaging and labeling requirements set forth in Operator’s Commercial Cannabis Permit application, as amended or supplemented, all commercial cannabis products shall be packaged in an opaque childproof container which shall contain a label or be accompanied by a leaflet or inset those states, at a minimum:
1) The name, address, and telephone number of the licensed commercial cannabis facility to which the commercial cannabis product is distributed, sold, or transferred. 2) The amount of commercial cannabis in the container; and
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3) The date the commercial cannabis was transferred to a licensed commercial cannabis facility.
i. Point of Sale Tracking System. Operator shall maintain an inventory control and reporting system that accurately documents the location of cannabis products from inception through distribution, including descriptions, weight, and quantity. The inventory control and reporting system shall comply with the track and trace program required by California Cannabis Law and regulations issued thereunder. Operator will make such records available to the City upon request.
Operator shall employ an electronic point of sale system approved by the State of California for all point of sales tracking from seed or inception to product distribution to other licensed commercial cannabis facilities. Such approved system shall track all commercial cannabis products, each edible, harvested flower, and/or manufactured concentrate, as well as gross sales (by weight and sale). Operator's point of sale system shall have the capacity to produce historical transactional data in accordance with City's requirements. j. Record Keeping. Operator shall maintain records for all commercial cannabis and/or infused products. Operator shall comply with all record-keeping responsibilities that are set forth in Ordinance No. 977-2021, including complete and up-to-date records regarding the amount of commercial cannabis sold and distributed through Operator’s facility. k. Handling, Storing, and Distribution of Commercial Cannabis and Related Products.
Commercial cannabis retail sales, handling, storing, or distribution shall not create offensive odors; create excessive dust, heat, noise, smoke, traffic, or other impacts that are disturbing to people of normal sensitivity residing or present on adjacent or nearby property or areas open to the public; or be hazardous due to use or storage of materials, processes, products, or wastes.
Operator shall store its commercial cannabis and/or commercial cannabis products in a locked safe room with T-card identification access for management only. The safe room shall be constructed of fire-rate walls with numerous cameras installed to view all entries and exits from the safe room, as well as all other activities performed within Operator’s facility. Operator will not conduct outdoor operations except as related to lawful delivery and transportation of medicinal commercial cannabis and infused products. Operator will not store medicinal commercial cannabis or related products in its delivery vehicle outside normal operating hours of the facility.
Commercial cannabis products shall be sold or distributed only to licensed facilities in California.
Excess or contaminated product will be securely stored on-site until it is properly disposed.
Disposal may include composting, incineration, land-fill disposal through the local waste management hauler, or other disposal methodology in accordance with state and county health and safety codes and regulations.
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l. Odor Control. All structures shall have ventilation and filtration systems installed that prevent commercial cannabis plant odors from exiting the interior of the structure. The ventilation and filtration system shall be approved by the Building Official and installed prior to commencing cannabis operations within the allowable structure. Facility air intake, exhaust, and recirculating system shall be of industrial grade. Activated charcoal, recirculating, and closed loop aeration systems will be utilized as necessary for effective odor control and management.
See minimum requirements, pursuant to Section 5.61.280(12). m. Description of Banking Plan. Operator shall seek to open a bank account under the name of Operator or its associated management company to provide transparency for funds received, operational costs, including payroll, tax payments to the state and federal governments. Should a bank account not be forthcoming, Operator shall implement other industry standard banking and/or other industry standard transactional mechanisms. n. Transportation Plan. Operator shall comply with all state and local law regarding transportation, including the rules governing delivery service. Operator shall retain a list of names and cellular contact numbers for all employees engaged in transportation of commercial cannabis products and provide it to the applicable oversight authority, keeping the list current and up to date.
Operator will keep complete and up-to-date records documenting each transfer of commercial cannabis to other lawful cooperative corporations, including the amount provided, the form or product category in which the commercial cannabis was provided, the date and time provided, the name of the employee making the transfer, the name and address of the other lawful cooperative corporation to whom delivery is made, and the amount of any related donation or other monetary transaction.
5. Community Relations, Employment, and Wages
a. Public Outreach and Education Program. The Operator shall coordinate and cooperate with City and other Operators of commercial cannabis facilities located within City of Barstow in the establishment and implementation of appropriate public outreach and education programs, including but not limited to working with each cannabis business to create awareness for the community. The public outreach and education programs shall be approved by City. b. Community Benefits Program. The Operator shall coordinate and cooperate with the City and other Operators of commercial cannabis facilities located within the City of Barstow in the establishment, implementation, and funding of a community benefits program which could include such items as senior citizen programs, City beautification efforts, funding for enforcement against illegal cannabis operations, public safety, housing programs, economic development, infrastructure, capital improvements, including expansion and/or improvement to existing facilities or other physical improvements that provide a benefit to the community, support of holiday and special community events, and support of local public service, public safety, litigation defense, and special social and community organizations. This community
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benefits program may be implemented by the City. The City may invite public participation in the decision-making process for identifying and prioritizing community needs and benefits and identifying appropriate projects to be funded by the entity implementing this community benefits program. All projects under the community benefits program must be approved by the City.
Operator agrees, as a business expense, to pay the City the yearly sum of $65,000. Unless initialed below by the City Manager, this yearly sum shall be deposited in full into a dedicated account set up by the City in order to create, fund and implement a City-approved community benefits program. The community benefits program funds shall be spent only as directed by the City Council and shall be separately accounted for within the City’s General Fund.
c. Designation of Community Relations Liaison. Pursuant to Ordinance No. 977-2021, at the time of this Agreement, Operator’s day-to-day operations manager, Michael Wilhoit, will be responsible for community inquiries and complaints and on-site management during normal business hours.
d. Interface with Barstow Police Department / Inspections. Operator’s day-to- day operations manager, and/or Operator’s Community Relations Liaison, Michael WIlhoit, will interface with the Barstow Police Department's assigned designee to ensure its operation complies with state and local laws and regulations. The City Manager, or designee, or the Barstow Police Department's assigned designee acting at the City Manager’s request and per his specific and limiting instructions, shall have the right to enter all Premises from time to time unannounced during hours of operation for the purpose of making reasonable inspections to observe and enforce compliance with this Agreement and state and local laws and regulations, without the requirement of a search warrant, subpoena, or court order, and subject to appropriate cost recovery fees set forth in this Agreement, or adopted by the City. e. Local Recruitment, Hiring, and Training Programs. Operator is committed to making a good-faith effort to recruit, hire, and train City residents for employment by Operator. A goodfaith effort means Operator shall take the following or similar actions to recruit and employ City residents: 1) Contact local recruitment sources to identify qualified individuals who are City residents, 2) Advertise for qualified City residents in trade papers and newspapers of general circulation in the area, and 3) Develop a written plan to recruit and employ City residents as a part of its workforce. At a minimum, the Operator commits to a good faith local annual hiring goal of 40% of total work hours for permanent and apprentice employees. This goal shall apply horizontally, across all departments and managerial positions. The Operator shall not be penalized or deemed in default under this Agreement if it is unable to achieve such a goal. "Local" is defined as within a 3-mile radius of the boundaries of the City’s boundaries. The purpose of the hiring policy is to facilitate the training and employment of local and disadvantaged job applicants for jobs within the City’s jurisdiction, and 3-mile radius of City boundaries. The Operator shall report on compliance with the local hiring goals as part of its annual audit report.
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f. Full-time Work. Operator shall make its best efforts to fill every position with a full-time employee. However, at no time shall Operator have a labor force that is composed of less than 50% full-time employees within its labor force, and Operator shall make a good faith effort to maintain a full-time employee level of 75%. Operator agrees to provide to its eligible employees leave benefits, health and wellness benefits and other employee benefits to the extent such benefits are required to be paid for by Operator under applicable state and federal employment laws.
6. Indemnification Agreement by each Cannabis Permittee Pursuant to Ordinance No 977-2021, and to the fullest extent permitted by local, state and/or federal law, the City of Barstow shall not assume any liability whatsoever with respect to having issued a Commercial Cannabis Permit or executed a Development Agreement pursuant Ordinance No 977-2021, or otherwise approving the operation of any commercial cannabis business. As a condition to the approval of any Commercial Cannabis Permit and to the execution and approval of this Development Agreement, the Operator shall be required to meet all the conditions enumerated in the Barstow Municipal Code before they can receive the Commercial Cannabis Permit and before this Agreement may be executed. The City Manager shall require each Commercial Cannabis Permittee to execute an Indemnification Agreement prepared by the City that fully indemnifies the City for all liabilities associated with the Commercial Cannabis Permit, the Commercial Cannabis Permittee's Commercial Cannabis Activities, and any action taken by the Cannabis Permittee. The Indemnification Agreement shall include the defense of the City and reimbursement of all fees, costs and expenses incurred by the City related to any action arising from this Agreement. Attached as Exhibit F, and incorporated herein by this reference, is true and correct copy of a fully executed Indemnification Agreement.
7. Fees, Costs, and Future Taxes
a. Fees. Operator agrees to pay all permit fees and charges adopted by City Council by Fee Resolution pursuant to Chapter 19.27 of the Barstow Municipal Code, as well as any fees set forth in this Agreement. Permit application, processing, and renewal fees shall be due and payable at the time application is made. The following fee payment obligations are imposed on the cannabis business Operator and not on the Owner if the Owner is solely a landlord and not also a listed permittee or operator of the cannabis business. b. Costs. Operator agrees to reimburse City for all additional reasonable costs of City resulting from the operation of a commercial cannabis facility authorized under applicable provisions of the municipal code, Council resolutions and administrative policies and regulations. Reimbursement to City for such costs shall be due and payable.
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c. Operating Fees.
As used herein, “Premises” means the designated structure or structures and land specified in the application that is owned, leased, or otherwise held under the control of the Commercial Cannabis Permittee applicant or Commercial Cannabis Permittee where the Commercial Cannabis Activity will be or is conducted. The parties stipulate and agree that the square footage for the Premises upon the Effective Date of this Agreement is and shall be during the term of this Agreement: approximately 1563 square feet.
As used herein, “Commercial Cannabis Activities” means all permitted activities: e.g., operating a Commercial Cannabis Retail Storefront Facility with Delivery of Cannabis and/or Cannabis Products.
As used herein, “Gross receipts” shall mean the total amount actually received or receivable in the course of business in a calendar year or calendar month from sales or the performance of acts or services for which charge is made or credit allowed. “Gross receipts” include, without limitation, all receipts, cash, credit, property received in lieu of cash, and any other valuable consideration taken in exchange for goods, services, or other valuable consideration.
As used herein, "Production Space" means the area on or within the Premises intended for Commercial Cannabis Activities excluding non-operational common areas such as restrooms, cafeterias, break rooms, hallways, corridors, vestibules, parking structures or surface street lots.
The parties stipulate and agree that the square footage for the Production Space shall be determined by the City Manager in his sole and complete discretion as the Project is completed.
The City Manager is specifically authorized to set and adjust the square footage for the Production Space and to determine the corresponding operating fee as the Project is completed.
Operator agrees to pay to City, in order to enable City to promote, protect, and enhance the healthy, safety, and welfare of the community and its residents and its quality of life, the following fees if the City were ever to approve the Operator holding a Cannabis Cultivation Permit or Cannabis Manufacturing Permit:
a yearly operating fee of Five Dollars ($5) per square foot x total square footage of the "Premises" until Operator is operating on the Premises and selling product under its City CCP and State License(s). Once Operator is operational and generating revenue, the yearly operating fee is Five Dollars ($5) per square foot x total square footage of the Premises. Fees shall be paid on December 31st of every year. Failure to pay the fee within 30 days after the due date shall result in an additional penalty for nonpayment in a sum equal to 25 percent of the total amount due.
Operator, as a holder of a Commercial Cannabis Retail Storefront Facility with Delivery Permit by virtue of this Agreement, shall pay to the City the following Operating Fees:
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a monthly operating fee(s) of:
3% (three percent) of Gross Receipts for operations from the Cannabis Non-Storefront Retail Delivery Permits and Cannabis Storefront Retail Permits, to be paid monthly. Fees shall be due to the City on 1st of the month. Failure to pay the fee within 30 days after the due date shall result in an additional penalty for nonpayment in a sum equal to 25 percent of the total amount due.
Facilities with multiple licenses must not commingle respective sales proceeds, and blend percentage rate of Gross Receipts.
d. Operator understands and agrees that the fees set forth above shall be paid in a manner and in accordance with a payment schedule set or modified by City. The cannabis facility areas to which the fee applies are as identified on the attached floor plan. e. If Operator makes any changes to the interior layout of the facility that increases the amount of space allocated to those uses to which the per-square- foot fee applies, Operator shall notify City of such changes at least fourteen (14) calendar days prior to making such changes, and the per-square-foot fee shall be modified accordingly. If Operator fails to give City notice as required herein, Operator shall be responsible for paying to City a per-square-foot fee based on any increase in the amount of space allocated to those uses to which the per-squarefoot fee applies retroactive to the date the Regulatory Permit became effective. f. The City Council hereby directs that fifty percent (50%) of the Operating Fees collected per Section 7(c) of this Agreement shall be used by the City for public safety costs, inclusive of funding for the Barstow Police Department and the Barstow Fire Protection District.
8. Cost Recovery Fee
In addition to the applicable application fees, community benefits payment, and City operating fees, Operator agrees to pay, and City shall assess to Operator fees to recover City’s reasonable processing and monitoring costs relating to Operator’s business upon issuance of Operator’s Commercial Cannabis Retail Storefront with Delivery Permit (hereinafter “CRF”). CRFs are separate and apart from any operating fees set forth in Article 7. The Operator shall pay all such fees per the cannabis fee scheduled as adopted by the City Council by Resolution. a. Processing Fees. Processing fees for the Application are based upon the direct and indirect costs that City incurs in reviewing the Application. The processing fees for the Application shall be based only on costs that are reasonably necessary for processing the Application and implementing the Ordinance, including staff time, legal fees, and consultant fees.
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b. Annual Regulatory and Monitoring Fees. Annual Regulatory and Monitoring fees for the Commercial Cannabis Retail Storefront with Delivery are based upon the direct and indirect costs City incurs in confirming the use of the Property in accordance with the municipal code, the Ordinance, this Agreement, and the Application. The monitoring fees shall be based only on costs that are reasonably necessary for conducting these reviews. c. Billing and Payment. The City may elect to bill the Operator the Initial CRF on the first day of the month following the Effective Date of this Agreement. Thereafter, City shall bill Operator, the CRF on the first day of each Quarter with an invoice providing the time spent by City and its representatives. Operator shall pay the CRF invoice within thirty (30) days of the invoice date.
d. Disputes. If Operator disagrees with the dollar amount provided by City on the CRF invoice, Operator may submit a written request before the disputed fee is due for a substitution of alternative CRF invoice to the City Manager. The written request must include supporting documentation. After review of the written request, Operator and City shall work, in good faith to resolve the dispute.
9. Additional Operator Obligations
a. Reporting of Gross Receipts from Operations
1) Quarterly Receipts. No later than, and every three months thereafter Operator shall deliver to City a report (the “Quarterly Report”) showing the following information for the cannabis business authorized under this Agreement: (i) Gross Receipts from operations for the immediate prior three months received by Operator, and a cumulative total of all amounts of Gross Receipts from Operations received by Operator for the calendar year, (ii) a calculation of the quarterly payment due to City for the prior three months, and (iii) a calculation of the cumulative total of all quarterly payments for the calendar year. This reporting obligation is imposed on the cannabis business Operator and not on the Owner if the Owner is solely a landlord and not also a listed permittee or operator of the cannabis business. 2) Statement of Receipts/Annual Audit. The Operator shall keep complete, accurate and appropriate books and records of all receipts from all cannabis business operations in accordance with generally accepted accounting principles. For purposes herein, “books and records” shall mean all bookkeeping or accounting documents Operator typically utilizes in managing its business operations relating to the Project. Such books and records, as well as all other relevant documents as the City Manager may reasonably require, shall, upon reasonable written notice, be open for inspection by City, its auditors, or other authorized representatives.
If at any time during the term such books and records prove inadequate in the reasonable judgment of City to record the Gross Receipts from Operations as herein required, Operator shall, upon the written request of the City, procure and maintain such books and records as shall be of a character and from adequate for such purpose. City shall have the right to audit and examine such books, records and documents and other relevant items in the possession of
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Operator, on no less than an annual basis, or at any time upon reasonable request by the City, to the extent necessary for a proper determination of Gross Receipts from Operations, and all such books, records, documents and other items shall be held available for such audit and examination. The City’s audit shall be performed by a non-contingency fee independent auditor approved in advance by the City. Upon request by City, Operator shall make all such books, records, and documents available to the City Manager, his designee, or to the City approved auditor, and provide removable copies thereof, within thirty (30) of the date of City’s request.
Operator shall pay all costs of such audits. Operator shall preserve such books, records, documents, and other items in Barstow for a period of not less than one (1) years for the purpose of auditing or re-auditing these accounts upon reasonable notice; except that, if an audit is made within the seven-year period and Operator claims that errors or omissions have occurred, the books and records shall be retained and made available until those matters are resolved. City shall keep strictly confidential all statements of revenue furnished by Operator and all other information concerning Operator’s operation of the Premises obtained by City as a result of the inspection audit and examination privileges of City hereunder, except as otherwise required by law. If City receives a request for such information pursuant to the Public Records Act (California Government Code Section 6250, et seq.), City shall provide Operator notice of any such request prior to disclosing any such information and afford Operator the opportunity to obtain a protective order. Within seven (7) years after the receipt of any statement of receipts under this Agreement, City at any time shall be entitled to carry out an audit of such revenue either by City or agent to be designated by City. If it shall be determined as a result of such audit that there has been a deficiency in any payment due under this Agreement made on the basis of such statement, then such deficiency shall become immediately due and payable within thirty (30) days of such determination.
1) Copies of Tax Filings. Operator shall provide the City with courtesy copies of each and every report Operator is required to provide to the County of San Bernardino, the State of California, and the Internal Revenue Service, as applicable, for sales, use, income, or other tax purposes for the cannabis business authorized by this Agreement at the time such filings are made. This reporting obligation is imposed on the cannabis business Operator and not on the Owner if the Owner is solely a landlord and not also a listed permittee or operator of the cannabis business. b. Future Revenue Mechanisms. During the term of this Agreement, if the City imposes (by Citizen Initiative or otherwise) an alternative revenue mechanism specifically related to cannabis operations (e.g., a cannabis tax), Operator agrees to renegotiate in good faith the terms of this Development Agreement with the City so as to comply with an alternative revenue mechanism. As used in this section, “alternative revenue mechanism” does not include taxes, fees, or assessments levied on or collected from both medicinal cannabis and non-cannabis operations.
10. Insurance and Indemnity
a. Insurance. Operator shall require all persons doing work on the Project, including its contractors and subcontractors (collectively, “Operator” for purposes of this Article 6 only), to
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obtain and maintain insurance of the types and in the amounts described in this section and its subsections with carriers reasonably satisfactory to City. b. General Liability Insurance. Operator shall maintain commercial general liability insurance or equivalent form with a limit of not less than Two Million Dollars ($2,000,000) (or as otherwise approved, in writing, by City) per claim and Two Million Dollars ($2,000,000) each occurrence. Such insurance shall also:
1) Name City, its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives as “Additional Insureds” by endorsement with respect to performance of this Agreement. The coverage shall contain no special limitations on the scope of its protection afforded to the above-listed additional insured. 2) Be primary with respect to any insurance of self-insurance programs covering City, its officials, employees, agents, and representatives.
3) Contain standard separation of insured provisions.
c. Automotive Liability Insurance. Operator) shall maintain business automobile liability insurance or equivalent form with a limit of not less than Two Million Dollars ($2,000,000) for each accident for the vehicles Operator) operates in connection with its cannabis business. Such insurance shall include coverage for owned, hired, and non-owned automobiles. Such insurance shall also:
1) Name City, and work in good faith with the City and the insurers to name additional insureds as deemed reasonably necessary. “Additional Insureds” by endorsement with respect to performance of this Agreement. The coverage shall contain no special limitations on the scope of its protection afforded to the above-listed additional insureds. 2) Be primary with respect to any insurance or self-insurance programs covering City, its officials, employees, agents, and representatives.
3) Contain standard separation of insured provisions.
d. Workers’ Compensation Insurance. Operator shall take out and maintain during the term of this Agreement, workers’ compensation insurance for all of Operator’s employees employed at or on the Project, and in the event any of the work is subcontracted, Operator shall require any general contractor or subcontractor similarly to provide workers’ compensation insurance for such contractor’s or subcontractor’s employees, unless such employees are covered by the protection afforded by Operator. In case any class of employee engaged in work on the Project is not protected under any workers’ compensation law, Operator shall provide and shall cause each contractor and subcontractor to provide adequate insurance for the protection of employees not otherwise protected. Operator hereby indemnifies City for any damage resulting from failure of Operator, its agents, employees, contractors, or subcontractors to take out or
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maintain such insurance. Workers’ compensation insurance with statutory limits and employer’s liability insurance with limits of not less than One Million Dollars ($1,000,000) each accident shall be maintained.
e. Other Insurance Requirements. Operator shall do all of the following:
1) Prior to taking any actions under this Agreement, furnish City with properly executed certificates of insurance that clearly evidenced all insurance required in this Article, including evidenced that such insurance will not be canceled, allowed to expire, or be materially reduced in coverage without thirty (30) days prior written notice to City. 2) Provide to City, upon request, and within seven (7) calendar days of said request, certified copies of endorsements and policies, and properly executed certificates of insurance evidencing the insurance required herein.
3) Replace or require the replacement of certificates, policies and endorsements for any insurance required herein expiring prior the termination of this Agreement. 4) Maintain all insurance required herein from the Effective Date of this Agreement to the earlier of the expiration of the term or the mutual written termination of this Agreement. 5) Place all insurance required herein with insurers licensed to do business in California with a current Best’s Key Rating Guide reasonably acceptable to City. f. Indemnity. Operator agrees to indemnify, defend, and hold City, and its elected and appointed council, boards, commissions, officers, agents, employees, contractors, consultants and representatives, harmless from any and all claims costs and liability for any personal injury or property damage which may arise as a result of any actions or negligent omissions by Operator or Operator’s contractors, subcontractors, agents, or employees in connection with the construction, improvement, or operation of the Project.
11. Termination
a. Termination Upon End of Term. This Agreement shall terminate upon the expiration of the term unless it is terminated earlier pursuant to the terms of this Agreement. Upon termination of this Agreement, City shall record a notice of such termination and this Agreement shall be of no further force or effect except as otherwise set forth in this Agreement. b. Effect of Termination on Operator’s Obligations. Termination of this Agreement shall eliminate any further obligation of Operator to comply with this Agreement, or some portion thereof, if such termination relates to only part of the Site or Project. Termination of this Agreement, in whole or in part, shall not, however, eliminate the rights of Operator to seek any applicable and available remedies or damages based upon acts or omissions occurring before termination.
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c. Effect of Termination on City’s Obligations. Termination of this Agreement shall eliminate any further obligation of City to comply with this Agreement, or some portion thereof.
Termination of this Agreement shall not, however, eliminate the rights of City to seek any applicable and available remedies or damages based upon acts or omissions occurring before termination.
d. Survival After Termination. The rights and obligations of the Parties set forth in Article 15, Article 21, and Section 23(e), Section 23(f), and Section 23(h), and any right or obligation of the Parties in this Agreement which, by its express terms or nature and context is intended to survive termination of this Agreement, will survive any such termination. e. Termination Upon Failure to Perform. The Operator shall have two years after the Effective Date to commence operation of the commercial cannabis facility contemplated by this Agreement. Failure of the Operator to commence commercial cannabis operations within that two-year time period may constitute a default and City shall have the right, but not the obligation, to exercise its default remedies under Section 14. The Parties agree to negotiate in good faith regarding any reasonably necessary extensions of this deadline for good cause, such as may be shown as a result of circumstances delaying commencement of operations beyond the control of the Operator.
12. Resources Efficiency
Operator shall endeavor to reduce its environmental impact when possible. The design of the facility shall include reasonable water and energy conservation measures in accordance with applicable State regulations.
13. Standard Conditions for Construction
During any on-site construction activities related to development of the project site and any buildings thereon, or renovation or remodeling of existing buildings, Operator shall comply with all applicable terms and conditions of City’s Code, attached hereto and incorporated herein by reference as Exhibit G. The Project shall comply with the applicable parking standards established by the City for cannabis activities.
14. Defaults and Remedies
a. Remedies in general. It is acknowledged by the parties that City would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof, except as hereinafter expressly provided. Subject to extensions of time by mutual consent in writing, failure to delay by either party to perform any term or provision of this Agreement beyond a reasonable notice and cure period shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement, the party alleging such default or breach shall give the other party not less than
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thirty (30) day notice in writing specifying the nature of the alleged default and the manner in which said default may be satisfactorily cured during any such thirty (30) day period, the party charged shall not be considered in default for purposes of termination or institution of legal proceedings. Notwithstanding the foregoing to the contrary, if the alleged default is of such a nature that it cannot be cured within thirty (30) days, the alleged defaulting party shall not be deemed in default as long as such party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion.
After notice and expiration of the thirty (30) day period without a cure of such default, the other party to this Agreement, at its option, may terminate the Agreement or institute legal proceedings pursuant to this Agreement.
In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that City shall not be liable in monetary damages, to Operator, to any mortgagee or lender, or to any successors in interest of Operator or mortgagee or lender, or to any other person, and Operator covenants on behalf of itself and all successors in interest to the Property or any portion thereof, not to sue for damages or claim any damages.
1) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
2) For the impairment or restriction of any right or interest conveyed or provided under, with, or pursuant to this Agreement, including, without limitation, any impairment or restriction which Operator characterizes as a regulatory taking or inverse condemnation; or 3) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. b. Specific Performance. The parties acknowledge that money damages and remedies at law are inadequate, and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
1) Money damages are unavailable against City as provided in Section 14(a) above. 2) Due to the size, nature, and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun.
After such implementation, Operator may be foreclosed from other choices it may have had to use the Property or portions thereof. Operator has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Operator for such efforts. By the same
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token, in the event that City issues any permit or other approval for a structure, and the public facilities, improvements, and infrastructure reasonably necessary to provide an adequate level of public services to that structure are not timely completed or Operator otherwise fails to carry out its obligations under this Agreement, then it would not be possible to determine a sum of money that would adequately compensate City for the resulting hardship. For the above reasons, City and Operator agree that, notwithstanding any other language in this Agreement, damages would not be an adequate or appropriate remedy if City fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is the only remedy which would compensate Operator if City fails to carry out its obligations under this Agreement, and City hereby agrees that Developers shall be entitled to specific performance in the event of a default by City hereunder. Further, specific performance of this Agreement is the only remedy which would compensate City if Operator fails to carry out their obligations under this Agreement, and Operator hereby agree that City shall be entitled to specific performance in such event.
c. Release. Except for those remedies set forth in Sections 14(a), 14(b), and 14(c), Operator, for itself, its successors and assignees, hereby releases City, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, based or asserted, pursuant to Article 1, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon City because it entered into this Agreement or because of the terms of this Agreement.
Operator acknowledges that it may have suffered, or may suffer, damages and other injuries that are unknown to it, or unknowable to it, at the time of its execution of this Agreement. Such fact notwithstanding, Operator agrees that the release provided in this Section 14(c) shall apply to such unknown or unknowable claims and damages. Without limiting the generality of the foregoing, Operator acknowledges the provisions of California Civil Code Section 1542, which provide:
“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.” Operator hereby waives, to the maximum legal extent, the provisions of California Civil Code Section 1542 and all other statutes and judicial decisions of similar effect. d. Attorneys’ Fees and Costs. In any action or proceeding between City and Operator brought to interpret or enforce this Agreement, or which in any way arises out of the existence of this Agreement or is based upon any term or provision contained herein, the “prevailing party” in such action or proceeding shall be entitled to recover from the non-prevailing party, in addition to all other relief to which the prevailing party may be entitled pursuant to this Agreement, the prevailing party’s reasonable attorneys’ fees and litigation costs, in an amount to be determined by the court. The prevailing party shall be determined by the court in
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accordance with California Code of Civil Procedure Section 1032. Fees and costs recoverable pursuant to this Section 14(e) include those incurred during any appeal from an underlying judgment and in the enforcement of any judgment rendered in any such action or proceeding. e. Operator Default. No building permit shall be issued or building permit application accepted for any structure on the Property after Operator is determined by City to be in default of the terms and conditions of this Agreement until such default thereafter is cured by Operator or is waived by City. If City terminates this Agreement because of Operator’s default, then City shall retain any and all benefits, including money or land received by City hereunder.
15. Third Party Litigation
a. General Plan Litigation. City has determined that this Agreement is consistent with its General Plan and all applicable special plans. Operator has reviewed the General Plan and concurs with City’s determination.
City shall have no liability under this Agreement or otherwise for any failure of City to perform under this Agreement, or for the inability of Operator to develop the Property as contemplated by the Agreement, including, but not limited to, if such failure to perform or inability to develop is the result of a judicial determination that the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law, or that this Agreement or any of City’s actions in adopting it were invalid, inadequate, or not in compliance with the law. b. Hold Harmless Agreement. Operator hereby agrees to, and shall hold City, its elective and appointive boards, commissions, officers, agents, attorney's, contractors, consultants and employees harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may arise from Operator or Operator’s contractors, subcontractors, agents, or employees’ operations under this Agreement, whether such operations be by Operator, or by any of Operator’s contractors, subcontractors, agents, or employees operations under this Agreement, whether such operations be by Operator, or by any of Operator’s contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Operator or any of Operator’s contractors or subcontractors. Operator agrees to and shall defend City and its elective and appointive boards, commissions, officers, agents and employees from any suits or actions at law or in equity for damage caused, or alleged to have been caused, by reason of any of the aforesaid operations.
c. Indemnification. Operator shall defend, indemnify, and hold harmless City and its elective and appointive boards, commissions, officers, agents, attorney's, contractors, consultants, and employees against and from any and all liabilities, demands, claims, actions or proceedings and costs and expenses incidental thereto (including costs of defense, settlement and reasonable attorneys’ fees), which any or all of them may suffer, incur, be responsible for or pay out as a result of or in connection with any challenge to the legality, validity or adequacy of any of the following: (i) this Agreement and the concurrent and subsequent permits, licenses
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and entitlements approved for the Project or Property, and all activities conducted under such entitlements; (ii) the environmental impact report, mitigated negative declaration or negative declaration, as the case may be, prepared in connection with the development of the Property; (iii) any claims based on or alleging inverse condemnation by any person or entity with an interest in the Property; and (iv) the proceedings undertaken in connection with the adoption or approval of any of the above. In the event of any legal or equitable action or other proceeding instituted by any third party (including a governmental entity or official) challenging the validity of any provision of this Agreement or any portion thereof as set forth herein, the parties shall mutually cooperate with each other in defense of said action or proceeding. Notwithstanding the above, City, at is sole option, may tender the complete defense of any third-party challenge as described herein. In the event City elects to contract with special counsel to provide for such a defense, City shall meet and confer with Operator regarding the selection of counsel, and Operator shall pay all costs related to retention of such counsel. d. Environmental Contamination. Operator shall indemnify and hold City, its elective and appointive boards, commissions, officers, agents, attorney's, contractors, consultants and employees free and harmless from any liability, based or asserted, upon any act or omission of Operator, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors, excepting and acts or omissions of City as successor to any portions of the Property dedicated or transferred to City by Operator, for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and Operator shall defend, at its expense, including attorneys’ fees, City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such claim, action or proceeding.
e. City to Approve Counsel. With respect to Sections 15(a) through 15(d), City shall approve any counsel which Operator selects, hires, or otherwise engages to defend City hereunder, which approval shall not be unreasonably withheld.
f. Survival. The provisions of Sections 15(a) through 15(f) inclusive, shall survive the termination or expiration of the Agreement.
16. California Environmental Quality Act
Operator shall reimburse City for any and all costs incurred by City related to project review under the California Environmental Quality Act (CEQA), Public Resources Code, §§21000- 21189.3, and the Guidelines for California Environmental Quality Act, California Code of Regulations, Title 14, §§15000-15387. If reasonably requested by City, Operator shall conduct and pay for any required CEQA reviews and analyses.
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17. Rules, Regulations, and Official Policies
Except as otherwise provided in this Agreement, the rules, regulations, and official policies of City governing permitted uses of the land, governing density, and governing the design, improvements, and construction standards and specifications applicable to the development of the Project subject of this Agreement, shall be those rules, regulations, and official policies of City in force at the time of the execution of this Agreement. This Agreement does not prevent City, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor does this Agreement prevent City from denying or conditionally approving any subsequent development project application based on such existing or new rules, regulations, or policies.
18. Commercial Cannabis Permit Conditions of Approval
Operator shall comply with all conditions of approval of the City-issued Commercial Cannabis Permit and Conditional Use Permit.
19. Periodic Reviews
This Agreement shall be subject to annual review. Operator and Landlord executing this Agreement, or successor in interest thereto, shall demonstrate good faith compliance with the terms of this Agreement. If, as a result of such periodic review, City finds and determines, based on substantial evidence, that Operator or Landlord executing this Agreement, or successor in interest thereto, has not complied in good faith with the terms or conditions of this Agreement, City may terminate or modify this Agreement (except no modification shall increase Operator’s liability nor reduce Operator’s rights), provided that City shall first provide Operator notice of its intent to terminate, with a detailed explanation as to why, and provide Operator the reasonable right to cure the same.
a. Periodic Review. City Council shall review this Agreement annually, on or before each anniversary of the Effective Date, in order to ascertain Operator’s good faith compliance with this Agreement. During the periodic review Operator shall be required to demonstrate good faith compliance with the terms of the Agreement, through submitting an annual monitoring report, records, or equivalent written materials to the Planning Department. The Planning Department will schedule a hearing on the periodic review of the Development Agreement on or following the anniversary of the Effective Date, but Operator has no obligation to compel such hearing, and no implication will be made to Operator’s detriment if a hearing is not in fact held. Operator shall document any request for an extension of the term due to delays beyond the control of Operator (see Section 23(j), “Force Majeure”). Operator shall submit an annual review and administration fee deposit not to exceed City’s estimated internal and third-party costs associated with the review and administration of this Agreement during the succeeding year, consistent with Section 23(k) (“Deposit with City”) below. City shall provide Operator said
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estimate a reasonable time in advance of the annual review and administration fee deposit being due.
b. Conditional Use Permit. In additional the Commercial Cannabis Permit, Operator shall apply for and obtain a Conditional Use Permit for the establishment and operation of its business. The operation of the business at all times shall be required to comply with the terms of this Agreement and the Conditional Use Permit.
c. Special Review. City Council may order a special review of compliance with this Agreement at any time. The Planning Director or his or her designee shall conduct such special review. During a special review, Operator shall be required to demonstrate good faith compliance with the terms of the Agreement. The burden of proof on this issue shall be on Operator.
d. Review Hearing. At the time and place set for the review hearing, Operator shall be given an opportunity to be heard. If City Council finds, based upon substantial evidence, that Operator has not complied in good faith with the terms or conditions of this Agreement, City Council may terminate this Agreement notwithstanding any other provision of this Agreement to the contrary, or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of City. The decision of City Council shall be final, subject only to judicial review pursuant to Code of Civil Procedure Section 1094.5. e. Certificate of Agreement Compliance. If, after a periodic or special review, Operator is found to be in compliance with this Agreement, and if Operator requests it, City shall issue a Certificate of Agreement Compliance (“Certificate”) to Operator stating that after the most recent periodic or special review, and based upon the information known or made known to the Planning Director and City Council, that (i) this Agreement remains in effect and (ii) Operator is not in default. City shall not be bound by a Certificate if a default existed at the time of the periodic or special review but was concealed from or otherwise not known to the Planning Director and City Council, regardless of whether the Certificate is relied upon by assignees or other transferees or Operator.
f. Failure to Conduct Review. City’s failure to conduct a periodic review of this Agreement shall not constitute a breach of this Agreement.
g. Cost of Review. The costs incurred by City in connection with the periodic reviews shall be borne by Operator.
20. Assignment
Assignment by Operator. Operator shall not transfer, delegate, sublet or assign its interest, rights, duties, and obligations under this Agreement without the prior written consent of City, which consent shall not be unreasonably withheld. Operator shall submit a transfer application
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to the City Manager or City Manager’s designee and pay any applicable transfer fee. The proposed transferee must show proof of lawful transfer of possession of the applicable location as may be acceptable to the City. Operator is aware it may take the City approximately six (6) months to process a transfer application.
Any assignment, delegation, subletting or assignment without the prior written consent of City shall be null and void. Any transfer, delegation, subletting or assignment by Operator as authorized herein shall be effective only if and upon the party to whom such transfer, delegation, subletting, or assignment is made is issued a Commercial Cannabis Permit as required under the Barstow Municipal Code.
21. Operating Commercial Cannabis Facility
Any party to this Agreement, or successor in interest thereto, shall not operate a commercial cannabis facility authorized under the municipal code unless:
a. It is the holder of a valid Commercial Cannabis Permit issued by City in accordance with the procedures and requirements or the Enabling Ordinance, and Chapter 19.27 of the Barstow Municipal Code; and,
b. It is the holder of a valid license issued by the State of California to operate a commercial cannabis business.
22. Notice
Any notice or communication required hereunder between City and Operator must be in writing, and may be given either personally, by registered or certified mail (return receipt requested), or by Federal Express, UPS or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered, as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:
If to City: City of Barstow
220 E. Mountain View Street, CA 92311
Attention: City Manager
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and City Attorney
790 E. Colorado Boulevard
Suite 850
Pasadena, California 91101
If to Operator:
Michael Wilhoit
1305 W Main Street #2
Barstow, California 92311
If to Landlord:
Sam & Dans Group LLC
7006 W Sunset Blvd.
Hollywood, CA 90028
With a courtesy copy to:
23. Miscellaneous Provisions
a. Amendment or Cancellation. This Agreement may be amended, or canceled in whole or in part, only by the written mutual consent of the parties to this Agreement or their successors in interest, except those minor amendments that do not affect a substantive provision of this Agreement may be approved by the City Manager on behalf of the City. The decision whether a proposed amendment is “minor” shall be in the exclusive discretion of the City Manager. c. Waiver. Waiver by City of any one or more of the terms or conditions of this Agreement shall not be construed as waiver of any other term or condition under this Agreement. d. Enforcement/Reserved Powers. Unless amended or canceled pursuant hereto, this Agreement shall be enforceable by any party hereto, or successor in interest thereto, notwithstanding any subsequent change in any applicable general or specific plan, zoning, subdivision or building regulation, or municipal code amendment adopted by City that conflicts with the terms of this Agreement. However, this Agreement is subject to the City's "Reserved Powers." For purposes of this Agreement, "Reserved Powers" means the rights and authority excepted from this Agreement's restrictions on the City's police powers and which are instead reserved to the City. The Reserved Powers include the powers to enact regulations or take future discretionary actions after the Effective Date of this Agreement that: (1) are necessary to protect the public health and safety, and are generally applicable on a City-wide basis (except in the event of natural disasters as found by the City Council such as floods, earthquakes and similar acts of God); (2) are amendments to California Cannabis Laws or California Uniform Codes, as adopted by the City of Barstow, and/or the Barstow Municipal Code, as applicable, regarding the construction, engineering and design standards for private and public improvements to be constructed on the Site; (3) are necessary to comply with state or federal
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laws and regulations; or (4) involve sign and parking ordinances and guidelines, changes to the City’s zoning laws, Specific Plan or the City's General Plan, whether adopted previous or subsequent to the Effective Date of this Agreement).
If any City ordinance, rule or regulation or addition to the Barstow Municipal Code is enacted or imposed by a citizen-sponsored initiative or referendum after the Effective Date that would conflict with this Agreement or an associated Commercial Cannabis Permit, business license or other authorizations and City approvals, or reduce development rights or assurances provided to the Operator in this Agreement, then such changes, additions or deletions to the Barstow Municipal Code shall not be applied to the Site or Project; provided, however, the parties acknowledge that the City's approval of this Agreement is a legislative action subject to referendum. The parties shall cooperate with each other and undertake such reasonable actions as may be appropriate to ensure this Agreement remains in full force and effect and is implemented in accordance with its terms and to the fullest extent permitted by state or federal law.
Notwithstanding anything to the contrary in this Agreement, site improvements contemplated by this Agreement shall be completed pursuant to the development standards and design guidelines to be adopted by the zoning code amendment.
e. Joint and Several Liability. Operator shall be jointly and severally liable for any amount due under this Agreement, and any breach of this Agreement or failure to pay by one Party shall also constitute a breach of this Agreement by the other Party. f. Severability. If any part of this Agreement is found to conflict with applicable state laws or regulations, such part shall be inoperative, null, and void insofar as it conflicts with said laws or regulations or modified or suspended as may be necessary to comply with such state laws or regulations, but the remainder of this Agreement shall continue to be in full force and effect. g. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The execution of this Agreement may be by actual, facsimile, or electronic signature.
h. Jurisdiction. The law governing this Agreement shall be that of the State of California.
Any suit brought by any party against any other party arising out of the performance of this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, shall be filed and maintained in the County of San Bernardino Superior Court. i. Disclaimer. Despite California’s commercial cannabis laws and the terms and conditions of this Agreement, any Conditional Use Permit, or any Commercial Cannabis Permit issued pertaining to Operator, or the property specified herein, California commercial cannabis cultivators, transporters, distributors, or possessors may still be subject to arrest by state or federal officers and prosecuted under state or federal law. The Federal Controlled Substances
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Act, 21 USC § 801, prohibits the manufacture, distribution, and possession of cannabis without any exemptions for medical use.
j. Force Majeure. If delays are caused by unforeseen events beyond the control of Operator, such delays will entitle Operator to an extension of time as provided in this section.
Such unforeseen events (“Force Majeure”) shall mean war, insurrection, acts of God, local, state or national emergencies, strikes and other labor difficulties beyond the party’s control, or any default by City hereunder, which Force Majeure event substantially interferes with the development, construction or operation of the Project.
k. Constructive Notice and Acceptance. Every person who after the Effective Date and recording of this Agreement owns or acquires any right, title, or interest to any portion of the Site, is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Site, and all rights and interests of such person in the Site shall be subject to the terms, requirements, and provisions of this Agreement.
l. Binding Effect of Agreement. The Parties agree that the Recitals above are true and correct and intend to be bound by same. Except as otherwise provided, the burdens of this Agreement are binding upon, and the benefits of this Agreement inure to, all authorized successors-in-interest of the Parties and constitute covenants which run with the Site. In order to provide constructive notice thereof, the City Clerk will record this Agreement with the San Bernardino County Recorder within the period required by Government Code Section 65868.5. m. Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and the Operator is that of a government entity regulating the development of private property and the Operator of such property.
n. Changes to Project. The parties acknowledge that changes to the Project or Development Plans and related approvals may be appropriate and mutually desirable to carry out the intent and purpose of this Agreement. This Agreement shall not prevent the City from applying, with the consent or at the request of the Operator, Subsequent Land Use Regulations or Subsequent Development Approvals that do not directly conflict with the Project, Site or Development Plan authorized under this Agreement. The granting of one such change, or request shall not obligate the City to grant other similar changes or requests. As used herein, “Subsequent Development Approvals” include, without limitation, all excavation, grading, building, construction, demolition, encroachment or street improvement permits, occupancy certificates, utility connection authorizations, or other non-discretionary permits or
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approvals necessary, convenient or appropriate for the Project. As used herein, “Subsequent Land Use Regulations” means ordinances, resolutions and codes adopted or approved by the City after the Effective Date of this Agreement governing the development and use of the land, including general plan amendments, zone changes, variances or conditional use permits affecting the permitted use of the land including density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions of reservation or Dedication of land for public purposes, and the design, improvement and construction and initial occupancy standards and specifications applicable to the Development of the Property. o. Conflicting Federal or State Rules. In the event that any conflicting federal or state laws or regulations, enacted after the Effective Date, prevent, or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, this Agreement shall remain in full force and effect as to those provisions not affected; and
(i) Notice of Conflict. Either party, upon learning of any such matter, will provide the other party with written notice thereof and provide a copy of any such law, regulation, or policy together with a statement of how any such matter conflicts with the provisions of this Agreement; and
(ii) Modification Conferences. The parties shall, within thirty (30) days of the notice referenced to in the preceding subsection, meet and confer in good faith and attempt to modify this Agreement to bring it into compliance with any such federal or state law or regulation. (iii) City Council Hearings. In the event the City believes that an amendment to this Agreement is necessary due to the effect of any federal or state law or regulation, the proposed amendment shall be scheduled for hearing before the City Council. The City Council shall determine the exact nature of the amendment necessitated by such federal or state law or regulation. Operator shall have the right to offer oral and written testimony at the hearing. Any modification ordered by the City Council pursuant to such hearing is subject to judicial review in accordance with California law.
(iv) Minor Amendments. A minor modification is a modification that does not modify the material terms of this Agreement including (1) the Term; (2) Facility Operations; (3) Indemnification; and (4) Fees. Minor Modifications shall not require a public hearing prior to execution of the modification to this Agreement. Either Party may propose a minor modification, consent to which shall not be unreasonably withheld, conditioned or delayed by the other Party. Upon the written request of Developer for a modification to this Agreement, the City Manager or his/her designee shall determine: (1) whether, in his/her reasonable judgment, the requested modification constitutes a minor modification as defined herein; (2) whether the requested modification is consistent with applicable law (other than that portion of this Agreement sought to be modified); and (3) whether, in his/her reasonable judgment, the requested modification tends to promote the goals of this Agreement. If the City Manager or his/her designee determines that the requested modification is minor modification that is
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Packet Pg. 490 Attachment: Quality Life - Final DDA Completed by City (Adoption) (4916 : Adoption of Quality Life DDA Ordinance) Quality Life – Updated Development Agreement – Final for Council Adoption 32 273194.1
consistent with applicable law and tends to promote the goals of this Agreement, the proposed modification will be approved by the City as a minor modification, and a written modification will be executed by the Parties and attached to this Agreement. Any such minor modification shall not be deemed an “amendment” to this Agreement under Government Code Section 65858.
(v) City Cooperation. The City shall cooperate with Operator in securing any City permits, licenses or other authorizations that may be required as a result of any amendment resulting from actions initiated by the City. As required by this Agreement, Operator shall be responsible to pay all applicable fees in connection with securing of such permits, licenses, or other authorizations.
q. Effective Date. “Effective Date” means the date on which all of the following are true: (i) thirty (30) days have elapsed since the second reading of the Ordinance adopting and approving this Development Agreement and (ii) all Exhibits to this Agreement are finalized, executed and notarized by all affected parties (if applicable) and attached hereto; provided, however, that if these conditions have not been fully satisfied by the Operator the Effective Date may not thereafter occur and this Agreement may not thereafter become effective.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
QUALITY LIFE CITY OF BARSTOW
"OPERATOR" "CITY"
By: Paul Anthony Courtney, Dr.B.A., Mayor
Its:
SAM & DANS GROUP LLC
"OWNER"
By:
Its:
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Packet Pg. 491 Attachment: Quality Life - Final DDA Completed by City (Adoption) (4916 : Adoption of Quality Life DDA Ordinance) Quality Life – Updated Development Agreement – Final for Council Adoption 33 273194.1
APPROVED AS TO LEGAL FORM FOR CITY:
Matthew T. Summers, City Attorney
ATTEST
Andrea Flores, City Clerk
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Packet Pg. 492 Attachment: Quality Life - Final DDA Completed by City (Adoption) (4916 : Adoption of Quality Life DDA Ordinance) Quality Life – Updated Development Agreement – Final for Council Adoption 34 273194.1
EXHIBITS
A LEGAL DESCRIPTION
B PARCEL MAP
C SITE AND FLOOR PLANS
D RESERVATION OR DEDICATION OF LAND FOR PUBLIC PURPOSES (IF APPLICABLE)
E OPERATIONAL AND ADDITIONAL BUSINESS STANDARDS (IF APPLICABLE)
F INDEMNIFICATION AGREEMENT
G STANDARDS AND CONDITIONS FOR CONSTRUCTION (IF APPLICABLE)
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Packet Pg. 493 Attachment: Quality Life - Final DDA Completed by City (Adoption) (4916 : Adoption of Quality Life DDA Ordinance)
23.c
Packet Pg. 494 Attachment: Exhibits - Quality Life (4916 : Adoption of Quality Life DDA Ordinance)
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Packet Pg. 495 Attachment: Exhibits - Quality Life (4916 : Adoption of Quality Life DDA Ordinance)
EXHIBIT C
SITE AND FLOOR PLANS
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Packet Pg. 496 Attachment: Exhibits - Quality Life (4916 : Adoption of Quality Life DDA Ordinance) BCC-LIC-011 (Rev. 7/18)
Bureau of Cannabis Control
State of California
*DYLQ1HZVRP Governor
www.bcc.ca.gov
PREMISES DIAGRAM
The premises diagram must be drawn to scale and clearly identify property boundaries, entrances, exits, interior partitions, walls, rooms, windows and doorways. The activities in each room and the location of all cameras must be identified on the diagram. For more detailed information see the instructions on the back.
Full Name of Applicant License Type Applied For
Proposed Premises Street Address City State ZIP Nearest Cross Street Diagram
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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Applicant Signature Date Signed
BCC Use Only (Signature/Certified Correct) Printed Name Inspection Date BCC-LIC-011 (Rev. 7/18) Page 1 of 2
SCALE: 3/32" = 1'
11'-111
2" 17'-61
2"
29'-6"
13'-103
4"
21'-10"
6'-11
2"
10'-21
4"
8'-43
4"
8'
5' 8'-3" 8'-5"
21'-8"
16'-43
4"
7'-43
4"
15'-61
4"
9'-101
2"
7'-93
4"
35'-33
4"
58'-23
4"
LOBBY
RETAIL
SECURED
INVENTORY ROOM
PREP RESTROOM
AREA
MAN
TRAP
3'
2'
4'
4'
2'
4'
4'
4' 4' 2' 4' 4'
POS POS
POS
POS
3' 3' 3' 3' 3' 3'
3'
3'
3'
3'
3'
15'-91
4"
ATMS
MERCH WALL
ENTRANCE
CUSTOMER
ENTRANCE
/ EXIT
EXIT
REFRIDGERATOR
EMPLOYEE
ENTRANCE
/ EXIT
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Packet Pg. 498 Attachment: Exhibits - Quality Life (4916 : Adoption of Quality Life DDA Ordinance)
EXHIBIT D
RESERVATION OR DEDICATION OF LAND FOR PUBLIC PURPOSES
(NOT APPLICABLE)
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Packet Pg. 499 Attachment: Exhibits - Quality Life (4916 : Adoption of Quality Life DDA Ordinance)
EXHIBIT E
OPERATIONAL AND ADDITIONAL BUSINESS STANDARDS
(NOT APPLICABLE)
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Packet Pg. 500 Attachment: Exhibits - Quality Life (4916 : Adoption of Quality Life DDA Ordinance)
EXHIBIT F
INDEMNIFICATION AGREEMENT
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Attachment: Exhibits - Quality Life (4916 : Adoption of Quality Life DDA Ordinance)
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Attachment: Exhibits - Quality Life (4916 : Adoption of Quality Life DDA Ordinance)
EXHIBIT G
STANDARDS AND CONDITIONS FOR CONSTRUCTION
(NOT APPLICABLE)
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Packet Pg. 504 Attachment: Exhibits - Quality Life (4916 : Adoption of Quality Life DDA Ordinance) Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Building
Christopher Heldreth
Ordinance
Doc ID: 4917
AGENDA ITEM
AGENDA MATTER:
ADOPTION OF ORDINANCE APPROVING DEVELOPMENT AGREEMENT FOR SHRYNE BARSTOW
LLC COMMERCIAL CANNABIS APPLICATION
EXECUTIVE SUMMARY:
Staff recommends the City Council adopt Ordinance No. 986-2022 approving Shryne Barstow LLC’s application for a Commercial Cannabis Dispensary and Non-Store Front Delivery permit, Cannabis Development Agreement, Conditional Use Permit, and related land use entitlements. The Planning Commission recommended approval at its December 13, 2021 meeting. The project is exempt from review under the California Environmental Quality Act, per CEQA Guidelines, Cal Code of Regs., tit. 24, sections 15301, 15302, and 15303, 15061, and 15378.
DISCUSSION:
On November 8, 2016, the Control, Regulate, & Tax Adult Use of Marijuana Act (“AUMA”) was approved by California voters via Proposition 64. The AUMA permits local jurisdictions to regulate and/or ban adult use cannabis cultivation, distribution and delivery, transportation, manufacturing, testing laboratories, dispensaries, and microbusiness facilities.
In June 2021, the City Council passed Ordinance No. 974-2021 which added Chapter 19.27 to the Barstow Municipal Code to permit commercial cannabis activities in the City. The ordinance went into effect on July 7, 2021. On October 4, 2021, the City Council adopted Ordinance No. 977-2021, amending the City’s cannabis regulatory program ordinance.
All cannabis businesses must enter into a development agreement with the City that will be subject to council approval through the adoption of an ordinance under Government Code Section 65865. This application came before the Planning Commission at its December 13, 2021 meeting for review as all land use permits and statutory development agreements must first be presented to the Planning Commission. The Planning Commission recommended approval.
At its January 3, 2022 meeting, the City Council introduced the ordinance approving the development agreement and related entitlements for this cannabis facility.
Application
Shryne Barstow LLC is applying for a permit for a Commercial Cannabis Dispensary.
Applicant’s representative, who will be listed on the permit if one is used and will be the point of contract for the Planning Department is Tak Soto.
Applicant Information
Shryne Barstow LLC is a Limited Liability Company. They do not have a federal tax identification number and are properly registered with the California Secretary of State. The company has the following corporate officers:
Managing Director: James ST Kim
President: Tak Soto
24 Packet Pg. 505
Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Building
Christopher Heldreth
Ordinance
Doc ID: 4917
AGENDA ITEM
CEO: Jonathan Avidor
Members of the applicant group have no relevant criminal convictions listed on their permit application.
Members of the applicant group have no listed unfair business practices listed on their permit application.
Location Information
Shryne Barstow LLC is a applying for a permit at 2560 High Point Parkway Suite A-2 and A-3 Barstow, CA 92311. APN #042821148. The total square feet of each structure applicant will occupy on the site is Suite A-2: 4,922 square feet and Suite A-3: 3,560 square feet.
The applicant is not the owner of the property but has provided the City with a copy of the Landlord Use Disclosure & Authorization for a Cannabis Facility agreement between applicant and owner.
Acknowledgment of City Standards
The managing members of the applicant group have submitted a signed acknowledgment of the City’s Cannabis operating standards as set forth in the City’s Municipal Code.
Information and Release Form
The managing members of the applicant group have signed and consented to the release of information necessary for the City to verify and confirm the information contained in their permit application.
On-Site Member Contact Statement
The applicant has designated Tak Soto as the on-site manager and the designated representative to whom the public or City can provide notice to if there are operating problems or issues related to the Cannabis Facility. The, on-site manager is subject to change, however the applicant is required to notify the City of Barstow if/when the on-site manger changes.
Conditional Use Permit
Applicant has submitted the required conditional use permit, including the following required documents:
seven sets of the plans in 24” x 36”, filing fees, notification packages, title report, existing site plan, proposed site plan, conceptual architectural renderings, an electronic copy of these plans, and any special studies as determined by the Community Development Department.
Environmental Information and Checklist
Applicant has submitted the required environmental information and checklist.
Security Plan
The applicant has submitted a security plan which contains: 24-hour security surveillance cameras, sensors, panic buttons, alarm system, 24-hour security personnel, and a lock system not solely controlled by an electronic access panel. Both Barstow Police Department Police Chief and Captain have reviewed the applicant’s security plan and it appears to meet all standards.
DOJ Live Scans for Owners, Managers, Employees, Volunteers, and Security Personnel Applicant has submitted the required Department of Justice Live Scans for owners, managers, employees, volunteers, and security personnel.
24 Packet Pg. 506
Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Building
Christopher Heldreth
Ordinance
Doc ID: 4917
AGENDA ITEM
Operations Plans
Applicant has submitted the required Operations Plan in accordance with the City’s Municipal Code. The following features are present in the Operations Plan: limiting access area, keeping cannabis and cannabis products in a secure manner, designating a security representative/liaison, a storage and transportation plan, cooperation with the City, and notification to Police Department with provisions. In addition, both Barstow Police Department and City of Barstow Attorney have reviewed the required Operations Plan.
Application Fees
Applicant has submitted the required application fees related to this permit application.
Council Decision to Approve introduction of the Ordinance on January 3, 2022 The City Council received public comments at a noticed public hearing and voted to approve introduction of the ordinance approving the development agreement and related entitlements, with certain modifications to the proposed development agreement. The attached final ordinance and development agreement incorporate the City Council’s requested changes to the development agreement.
FISCAL IMPACT:
N/A
RECOMMENDED ACTION:
Staff recommends the City Council adopt Ordinance No. 986-2022 approving Shryne Barstow LLC’s application for a Commercial Cannabis Dispensary and Non-Store Front Delivery permit, Cannabis Development Agreement, Conditional Use Permit, and related land use entitlements. The Planning Commission recommended approval at its December 13, 2021 meeting. The project is exempt from review under the California Environmental Quality Act, per CEQA Guidelines, Cal Code of Regs., tit. 24, sections 15301, 15302, and 15303, 15061, and 15378.
24 Packet Pg. 507
274091.1
ORDINANCE NO. 986-2022
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF BARSTOW APPROVING A CANNABIS LICENSE APPLICATION
FOR SHRYNE BARSTOW LLC AND DEVELOPMENT AGREEMENT WITH
SHRYNE BARSTOW LLC FOR A COMMERCIAL CANNABIS DISPENSARY LOCATED AT 2560 HIGH POINT PARKWAY SUITES A-2 & A-3, BARSTOW, CA 92311
WHEREAS, California voters approved Proposition 215 (Health and Safety Code Section 11362.5), entitled the Compassionate Use Act (CUA), in 1996, which exempts patients and their primary caregivers from criminal prosecution or sanctions under H&S Code Sections 11357 and 11358 for qualified use and cultivation of medical cannabis; and WHEREAS, the California Legislature passed Senate Bill 420 (H&S Code Sections 11362.7 et seq.) in 2003 to create the Medical Marijuana Program (MMPA), which established a voluntary program for the issuance of medical cannabis identification cards for qualified patients, set limits on the amount of cannabis any individual could possess, and provided an exemption from state criminal liability for persons "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes"; and
WHEREAS, in November 2016, California voters approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act ("AUMA"), which established a state licensing and regulatory system for commercial cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, delivery, or sale of recreational marijuana and marijuana products; and
WHEREAS, on June 27, 2017, the Governor signed the Medicinal and Adult-Use Cannabis Regulation and Safety Act ("MAUCRSA"), consolidating the AUMA with previous state law regarding commercial medical marijuana activities to create one state licensing system for commercial activities related to medical and recreational marijuana; and WHEREAS, both the AUMA and MAUCRSA authorize the City to further regulate or completely prohibit the establishment or operation of commercial marijuana activities within its limits, even such activities that may be licensed under state law; and WHEREAS, the City's power to regulate or completely prohibit commercial marijuana activities under the AUMA and MAUCRSA is consistent with the California Supreme Court's decision in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 7; and
WHEREAS, the California Attorney General's August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or other concentration of marijuana 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 or crime; and
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Packet Pg. 508 Attachment: Shryne Barstow Ord. 986-2022 (4917 : Adoption of Shryne LLC DDA Ordinance) 2 274091.1
WHEREAS, the California Planning and Zoning Law (Gov. Code, § 65000 et seq.) authorizes the City to adopt and administer zoning laws, ordinances, rules, and regulations; and
WHEREAS, the City of Barstow passed Ordinance No. 974-2021 on June 7th 2021 to begin the process of allowing Cannabis sales; and WHEREAS, the City of Barstow passed Ordinance No. 977-2021 on October 4th 2021, adopting land use laws for Cannabis sales and requiring applicants to execute a development agreement with the City before beginning operation; and WHEREAS, no cannabis business may operate in the City of Barstow unless first issued a permit by the City; and
WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the California Legislature adopted Government Code section 65864 et seq. (the “Development Agreement Statute”), which authorizes the City and an individual with an interest in real property to enter into a development agreement that establishes certain development rights in real property that is subject to a development agreement application; and
WHEREAS, the proposed project is consistent with the Barstow General Plan and the California Environmental Quality Act; and
WHEREAS, Shryne Barstow LLC proposes to improve, develop and use real property to operate a Commercial Cannabis Dispensary at 2560 High Point Parkway, Suites A-2 & A-3 Barstow, CA 92311 (APN #0428-211-48) and has properly submitted a completed cannabis license application; and WHEREAS, City and the Shryne Barstow LLC seek to enter into a development agreement for the Project (the “Development Agreement”) pursuant to the Development Agreement Statute and all applicable local and state laws; and WHEREAS, the Planning Commission approved Resolution No. 559-2021 finding that an ordinance approving the Development Agreement will allow the City to adequately regulate and address all impacts of the Project in the City in accordance with state law; and
WHEREAS, the City Council finds that the ordinance is in the best interest of the health, welfare, and safety of the public.
NOW THEREFORE, the City Council of the City of Barstow hereby ordains as follows:
Section 1. Incorporation of Recitals. The above set forth recitals and findings are true and correct and incorporated herein by reference, as if set forth herein in full.
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Section 2. Finding Regarding the Development Agreement. Based upon the foregoing facts and findings for DA 2 the City Council hereby determines as follows:
A. DA 2 was reviewed and deemed correct and in compliance with Government Code Section 65865.2 and Chapter 19.46 of the Barstow Municipal Code; and B. DA 2, if approved, is in the best interests of the City because the commercial cannabis dispensary increases commercial vibrancy in the City; and, C. DA 2 is consistent with the actions, goals, objectives, and policies of the City's General Plan and Zoning Regulations because the project promotes local opportunities for commerce and engagement, and
D. The application to the City was made on forms approved, and contains all information required by the Director and is filed with the Department in compliance with Chapter
19.46; and
E. The application was accompanied by all lawfully required documents, materials, and information; and,
F. With the adoption of this ordinance and development agreement and notwithstanding the requirements in Chapter 19.46 of the Barstow Municipal Code and the City’s Zoning Regulations, the City Council approves the Proposed Project.
Section 3. Approvals. In view of all the evidence and based on the foregoing findings the City Council approves DA 2 and grants a Notice of Exemption for the Proposed Project, subject to the Conditions of Approval in Planning Commission Resolution No. 559-2021.
Section 4. Authorization to Execute Development Agreement. Pursuant to Barstow Municipal Code Chapter 19.46, the City Council directs the City Manager and the City Attorney to prepare a development agreement embodying the terms and conditions of the Proposed Project as conditionally approved and authorizes the City Manager to execute the development agreement, which shall be substantially consistent with the proposed development agreement attached as Exhibit "A."
Section 5. CEQA. This ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines§§ 15060(c)(2), 15060(c)(3), 15061(b)(3) and 15378(b)(4). This ordinance will not result in a direct or reasonably foreseeable indirect physical change in the environment; it does not involve a "project" as defined by CEQA Guidelines § 15378; and it is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. It can be seen with certainty that there is no possibility this ordinance may have a significant effect on the environment. Further the City previously approved Ordinance No. 974-2021 on June 7, 2021 and Ordinance No. 977-2021 on October 4, 2021 and those Ordinances were exempt from CEQA under Business and Professions Code section 26055(h) which exempts from CEQA review the adoption of an ordinance, rule, or
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regulation, by a local jurisdiction that requires discretionary review and approval of permits, licenses, or other authorizations to engage in commercial cannabis activity. This Ordinance now acts to amend the Barstow Municipal Code as to procedural requirements.
Section 6. Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable.
Section 7. Effective Date. This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937.
Section 8. Construction. To the extent the provisions of the Barstow Municipal Code as amended by this Ordinance are substantially the same as the provisions of that Code as it read prior to the adoption of this ordinance, they shall be read as continuations of those earlier provisions and not as new enactments.
Section 9. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall give notice of its adoption as required by law. Pursuant to Government Code Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text.
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Packet Pg. 511 Attachment: Shryne Barstow Ord. 986-2022 (4917 : Adoption of Shryne LLC DDA Ordinance) 5 274091.1
PASSED, APPROVED AND ADOPTED this 7
th day of February, 2022
__________________________________
Paul Anthony Courtney, Dr. B.A., Mayor
ATTEST:
______________________________
Andrea Flores, City Clerk
I, Andrea Flores, City Clerk for the City of Barstow, California, and ex-officio Clerk of the City Council, do hereby certify under penalty of perjury that the foregoing is a true and correct copy of Ordinance No. 986-2022, which was introduced at a regular meeting of the City Council of the City of Barstow held on the 3
rd day of January, 2022 and adopted at the regular meeting of the City Council of the City of Barstow on the 7
th day of February, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
____________________________
Andrea Flores, City Clerk
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Packet Pg. 512 Attachment: Shryne Barstow Ord. 986-2022 (4917 : Adoption of Shryne LLC DDA Ordinance) Shryne Barstow LLC – Updated Development Agreement – Final for Council Adoption 1 273195.1
COMMERCIAL CANNABIS BUSINESS DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF BARSTOW AND
SHRYNE BARSTOW LLC AND JC INVESTMENTS LLC
THIS DEVELOPMENT AGREEMENT (this “Agreement”) is made and entered into this 29TH day of November, 2021, (the “Execution Date”), by and between the CITY OF BARSTOW, a California municipal corporation (“City”) and SHRYNE BARSTOW LLC dba STIIIZY BARSTOW ("Operator") and JC INVESTMENTS LLC (“Owner”). City, Operator, and Owner are sometimes referenced together herein as the “Parties.” In instances when a provision hereof applies to each of the Parties individually, either may be referenced as a “Party.” The Parties hereby jointly render the following statement as to the background facts and circumstances underlying this Agreement:
RECITALS
WHEREAS, the State of California enacted California Government Code Sections 65864 et seq. (“Development Agreement Statutes”) to authorize municipalities to enter into development agreements with those having an interest in real property to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development in connection with the development of real property within their jurisdiction; and
WHEREAS, the purpose of the Development Agreement Statutes is to authorize municipalities, in their discretion, to establish certain development rights in real property for a period of years regardless of intervening changes in land use regulations, to vest certain rights in the Owner, and to meet certain public purposes of the local government; and WHEREAS, as authorized by the Development Agreement Statutes, the City has adopted Ordinance No. 934-201 to add Barstow Municipal Code Chapter 19.46, establishing the procedures and requirements for the consideration of development agreements with the City; and
WHEREAS, on November 8, 2016, California voters enacted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, also known as the Adult Use of Marijuana Act ("AUMA"), which establishes a comprehensive system to legalize, control, and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical cannabis, including cannabis products, for use by adults 21 years and older, and to tax the growth and retail sale of cannabis for nonmedical use; and
WHEREAS, on June 27, 2017, Governor Jerry Brown signed into law the Medicinal and Adult-Use Cannabis Regulation and Safety Act ("MAUCRSA"), which creates a single regulatory scheme for both medicinal and adult-use cannabis businesses. MAUCRSA retains the provisions
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in MCRSA and AUMA that granted local jurisdictions control over whether businesses engaged in Commercial Cannabis Activity may operate in a particular jurisdiction; and WHEREAS, on June 7, 2021, the City Council of the City of Barstow adopted Ordinance No. 974-2021 to permit commercial cannabis activities in the City; and WHEREAS, on October 4, 2021 the City Council of the City of Barstow adopted Ordinance No. 977-2021 amending the zoning code to allow for commercial cannabis as a permitted use in certain zones; and
WHEREAS, Owner currently holds a legal or equitable interest in real property considered in this Agreement which has a development area approximately 40,191 square feet located at 2560 High Point Pkwy, City of Barstow, State of California (the “Site”). The Site includes Assessor’s Parcel Number: 042821148, and is more fully described in Exhibit A and shown on the map in Exhibit B. Both exhibits being attached hereto and incorporated herein by this reference;
WHEREAS, presently, Operator has a leased interest in land real property owned by Owner for the purpose of commercial cannabis related activities which shall include, but not be limited to medical and recreational cannabis sales to customers. Such Commercial Cannabis facilities shall operate in accordance with all applicable provisions of Business and Professions Code §§26000-26231.2; California Health and Safety Code Safety Code §§ 11357-11362.9 and 11362.7- 11362.85; Revenue and Taxation Code §§ 34010-34021.5; Vehicle Code §§ 2429.7 and 23222; Water Code §§ 1831, 1847, and 13276; and the City of Barstow Municipal Code as it applies to such facilities (collectively the “Applicable Cannabis Laws”). Prior to operating a Commercial Cannabis Storefront Retailer (Type 10), Operator shall be required to obtain approval of this Agreement, a conditional use permit, and a Commercial Cannabis Permit from the City, and all related state and other permits and licenses prior to the operation of same, pursuant to Barstow Municipal Code Chapter 19.27 et seq.; WHEREAS, Operator intends upon obtaining a California State License issued, pursuant to Applicable Cannabis Laws, to operate a Type 10 Storefront Retailer at the Site. The definition of "Owner" hereunder shall mean and refer to the fee simple owner while any authorized tenant of the Site to the extent such party holds or is covered by a Commercial Cannabis Permit shall be known as Operator;
WHEREAS, on December 1, 2021 Operator applied to this City for a Commercial Cannabis Permit (hereinafter "CCP”) to conduct Commercial Cannabis Activities. No such activities are allowed or authorized without a Development Agreement, a conditional use permit, a Commercial Cannabis Permit, and all requirements pursuant to City Ordinance No. 977-2021, including all applicable requirements pursuant to the Barstow Municipal Code.
WHEREAS, Operator presently intends to develop and open a Type 10 Storefront Retailer on the Site consistent with the Applicable Cannabis Laws and Project Approvals (known as the
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“Project”). The Project will include medical and recreational cannabis sales to customers (under the Applicable Cannabis Laws but would not include growing, manufacturing, distribution, or testing at the Project Site without further authorization by the City).
WHEREAS, the Project will consist of: one two existing suites totaling approximately 2,960 square feet. The complex will employ approximately 10 employees per shift. The building will be divided into major spaces as follows:
Retail Storefront: The facility would include a commercial cannabis business facility where cannabis, cannabis products, or devices for the use of cannabis or cannabis products are offered, either individually or in any combination, for retail sale to customers at a fixed location, including an establishment that also offers delivery of cannabis and cannabis products as part of a retail sale, which are open to the public, with all business activities conducted in accordance with state law, including, but not limited to specified hours of operation.
Parking/Loading/Access: The proposed project provides 41 parking spaces, including one accessible van space. Loading will take place on-site with a loading space accessed on the east side of the structure. In no event will loading occur within the public right-of-way. Vehicular access to the site will be through an existing driveway on High Point Parkway. Within the site, access to the structures will be through the secured front entrance for customers and through the back delivery-only entrance for employees and deliveries. Pedestrian walkways within the structure and on the north, west and south sides of the structure allow pedestrian circulation throughout the site. The project is within an existing structure.
Security: The project will secure the facility against unauthorized entry by installing commercialgrade locks, installing an alarm and video surveillance system, establishing procedures for identifying authorized persons, establish inventory controls, and install a secure surveillance vault to maintain the integrity of records. In addition, the applicant will engage a licensed security company to provide an operational security plan in compliance with City Ordinance No. 977-2021.
The proposed layout of the site is as shown in the attached Site and Floor Plans, in Exhibit C.
Hours of Operation:
9 AM to 10 PM for general business hours 24-hours for internal operations Operator has applied for 1 license:
3) Retail Storefront Type 10
Please see Exhibit C of this Development Agreement for details for separate and distinct locations of each operation within the Premises.
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WHEREAS, all procedures of the California Environmental Quality Act (“CEQA”), California Public Resources Code §21000 et seq., and the CEQA guidelines, title 14 of the California Code of Regulations, chapter 3, §15000 et seq. have been satisfied; WHEREAS, the City has given public notice of its intention to adopt this Agreement and has conducted public hearings thereon pursuant to California Government Code §65867. The City has found that the provisions of this Agreement and its purposes are consistent with the objectives, policies, general land uses and programs specified in City’s General Plan, zoning code and municipal ordinances;
WHEREAS, the City, in entering into this Agreement, acknowledges that certain City obligations hereby assumed shall survive beyond the terms of the present Council members, that this Agreement will serve to bind City and future Councils to the obligations hereby undertaken, and that this Agreement shall limit the future exercise of certain governmental and proprietary powers of City. By approving this Agreement, the Council has elected to exercise certain governmental powers at the time of entering into this Agreement rather than defer its actions to some undetermined future date. The terms and conditions of this Agreement have undergone extensive review by City and the Council and have been found to be fair, just and reasonable. City has concluded that the pursuit of the Project will serve the best interests of its citizens and that the public health, safety and welfare are best served by entering into this obligation. Owner has represented to City that it would not consider or engage in the Project absent City approving this Agreement;
WHEREAS, the City agrees that Owner’s land use entitlements for the Project shall vest for the term of this Agreement as described below;
WHEREAS, after conducting a duly noticed hearing on December 13, 2021, in conjunction with the City’s applicable ordinances and resolutions, the Planning Commission of the City reviewed, considered and approved environmental clearance and recommended approval of the execution of this Agreement to the City Council. The Planning Commission found the Project: consistent with the objectives, policies, general land uses and programs specified in the general plan; compatible with the uses authorized in the City’s zoning laws; in conformity with the public necessity, public convenience, general welfare and good land use practices; will not be detrimental to the health, safety and general welfare of the city; will not adversely affect the orderly development of property or the preservation of property values; and will have a positive fiscal impact on the City;
WHEREAS, after conducting a duly noticed hearing on January 3, 2022 in conjunction with the City’s applicable ordinances and resolutions, and after independent review and consideration, the City Council approved the execution of this Agreement by adopting the Enabling Ordinance, Ordinance No. 986-2022, the ordinance that approves this development agreement. The City Council found the Project: consistent with the objectives, policies, general land uses and programs specified in the general plan; compatible with the uses authorized in the City’s zoning laws; in conformity with good land use practices; will not be detrimental to the
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health, safety and general welfare of the City; and is in the best interest of the City of Barstow and its residents.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
1. Government Code and Municipal Code Required Elements a. Description of Property. Land situated in the City of Barstow, County of San Bernardino, State of California; whose street address is 2560 High Point Pkwy, City of Barstow, State of California (the “Site”). The Site includes Assessor’s Parcel Number: 042821148. b. Owner and Other Person with Legal or Equitable Interest.
Owner: JC Investments LLC,
Nature of Interest: Lease for 10 years
Operator: Shryne Barstow LLC dba STIIIZY Barstow
Nature of Interest: 100% owner and operator of the Type 10 cannabis business.
If Owner is not the fee simple owner of the Site, check box below:
[x] Operator represents and warrants that the property owner has consented in writing to the execution and recordation of this Agreement against the Site. c. Permitted Uses. The subject property may be used for commercial cannabis facility as presently authorized under City Ordinance No. 977-2021 including Barstow Municipal Code §§
19.27, and for any other use as authorized under applicable provisions of the Barstow Municipal Code.
d. Zoning. Owner shall guarantee that such activities outlined in Owner’s Commercial Cannabis Permit Application (“Application”) conducted pursuant to this Agreement and under the Commercial Cannabis Permit shall comply with the City’s municipal code, including the zoning ordinance and any and all development and construction requirements contained therein. Owner shall not conduct any business under this Agreement or under the Commercial Cannabis Permit without having obtained all necessary permits, licenses, and approvals from the City and State of California.
e. Reservation or Dedication of Land for Public Purposes. As the property is an existing establishment, sufficient roadway, sidewalk, and utility easements already exist.
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2. Term
a. This Agreement, along with the issued the Cannabis Business Permit and Conditional Use Permit shall commence on the Effective Date and it shall end five (5) years from the starting date. This Agreement shall be extended for one (1) additional five (5) year period following the expiration of the initial five (5) year term upon the occurrence of all of the following:
(i) The Operator shall give written notice to the City no later than one hundred twenty (120) days before the expiration of the initial five (5) year term that the Owner desires to extend this Agreement for an additional five (5) year period;
(ii) The Operator shows adequate evidence to the City that it has a legal and/or equitable interest in the Property and/or will have such interests for the duration of the extended term of the Agreement;
(iii) The Operator shall deposit all fees per the Council-adopted fee schedule necessary for processing the extension request and drafting necessary documentation; (iv) The Operator shall comply with all provisions of Ordinance No. 977-2021 adopting this Agreement, Barstow Municipal Code Chapter 19.27 et seq., all terms imposed by the City-issued Commercial Cannabis Permit, and City-Issued Conditional Use Permit, and all other requirements of applicable City law and permits; and
(v) The Operator has completed and built the commercial cannabis facility contemplated by the Agreement and has commenced and continues to operate it in compliance with and shall not be in default of any provision of any applicable law, including Barstow Municipal Code Chapter 19.27, or any agreement between City and Owner relative to the development of the Property or of any condition of approval imposed upon any entitlement granted by the City relative to the development of the Property or cannabis operations for which Owner has been given a written notice to cure by the City and for which Owner has not cured or commenced to cure such default within thirty (30) days, if and as provided by such agreement or condition of approval.
b. The Parties may agree to extend this Agreement for additional five (5) year periods, provided that the same conditions in Section 2(a) continue to be met and that the City has expressly approved a further five (5) year renewed term. The City reserves the right to conditionally approve and/or shorten the length of additional renewal periods. The City shall give at least 180 days’ notice of any proposed nonrenewal of this Agreement.
3. Owner’s (or Operator’s) Site and Floor Plans, Infrastructure/Utility Plans, and American Disabilities Act (“ADA”) Plans.
a. Owner’s (or Operator’s) site plan and floor plan for the facility are attached hereto as Exhibit C and incorporated into the Application.
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b. A preliminary landscape plan shall be prepared by the Operator and reviewed and approved by the City Manager and/or the Director of Public Works & Development Services, or their respective designees. A final landscape plan shall be prepared and submitted in conjunction with building and site improvement plans prior to issuance of building permits for construction activities. All final landscape plans must comply with the Building Code. c. An exterior signage plan shall be prepared and reviewed and approved by the City Manager and/or the Director of Public Works & Development Services, or their respective designees, in accordance with the procedures and requirements of the Barstow Municipal Code.
4. Facility Operations
a. Standard Operating Procedures. Operator is a lawful entity that will only sell to other legally permitted persons and entities under the California Cannabis Laws. Prior to operating a Commercial Cannabis Type 10 Storefront Retailer, Operator shall be required to obtain a Commercial Cannabis Permit, this Agreement, a conditional use permit, and all requirements pursuant to said entitlements, from the City pursuant to the Enabling Ordinance and Chapter
19.27 of the Barstow Municipal Code. Further, Operator may operate such cannabis-related activities as permitted in accordance with California state laws and regulations, as may be amended, including without limitation, as long as such activity is not inconsistent with Enabling Ordinance, this Development Agreement, the City-issued Commercial Cannabis Permit, the Cityissued conditional use permit, and the Barstow Municipal Code.
During the term of this Agreement, Operator shall lawfully operate in accordance with all state and local laws, and all City cannabis permittee regulations and procedures. Operator shall employ exemplary operating procedures to comply with state and local laws. Operator’s facility shall employ safety and security measures for the safety and security of its employees, visitors, vendors, and neighboring communities and properties.
Operator shall fully comply with the City’s Operating Standards regulating the proposed Commercial Cannabis Activity as set forth in Chapter 19.27 of the Barstow Municipal Code, and those required by the Enabling Ordinance No. 977-2021, and such more specific operational requirements set forth in Exhibit E, "Operational and Business Standards" as adopted by the City Manager, attached hereto.
b. Security Plan. Operator shall secure approval of its proposed security plan by the Barstow Police Department prior to opening. The security plan shall include, at a minimum and as appropriate, provisions for video surveillance, perimeter fencing and security, protection of the building(s) from vehicle intrusion, cash handling procedures, internal accounting controls, product handling and storage procedures, and a professionally monitored alarm system.
Equipment and systems used for video surveillance and building alarms shall be approved by City.
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Video surveillance shall include, at a minimum, all site and facility entrances and access points, all spaces accessible by the public, all secured areas of the facility with restricted access, all interior spaces and rooms where cannabis products are handled and processed, shipping and receiving areas, cash storage areas, and other areas necessary to protect the safety of employees and the public and to ensure cannabis products are received, handled, stored, packaged, shipped, and distributed in compliance with applicable state and local laws and regulations. The video surveillance system shall be web-based with direct access provided to the Barstow Police Department upon request.
The security system shall also include sensors to detect entry and exit from all secure areas, panic buttons in appropriate locations, and a professionally monitored alarm system with glass breakage sensors and motion detectors.
Operator shall employ properly trained and licensed third-party security personnel to protect the welfare and safety of Operator and employees, and to ensure public safety to the neighboring community. Operator shall use security personnel twenty-four (24) hours, Seven (7) days a week. Security personnel may be armed so long as proper licensing and insurance requirements are followed and met by the third-party operator providing such security services. c. Fire Department Approval. Operator shall not operate any facility, and no permit, license, or other approval issued by City shall be valid unless and until the Barstow Fire Protection District has approved Operator’s site plan, floor plan, safety plan, and any other plans that require its approval.
d. Possession of Firearms. Except for licensed and bonded security personnel, no person employed by Operator shall be in possession of any firearm while on the premises or location without having first obtained a license from the appropriate state or local agency authorizing the person to be in possession of such firearm. Every such person in possession of a firearm while on the premises or location must provide the City Manager and the Barstow Police Department, ten (10) days before bringing the firearm onto the premises, with the following:
1) A copy of the license issued to the person by the appropriate state or local agency authorizing him or her to possess such firearm;
2) A copy of his or her law enforcement identification (if he or she is employed by a law enforcement agency).
3) A copy of his or her California driver’s license or California identification card; and 4) Any other information reasonably required by the Barstow Police Department to show that the individual is in compliance with the provisions of all laws regarding the possession and use of a firearm.
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e. Identification Display. Each Operator manager, employee, and individual member engaged in the retail sale of cannabis shall at all times while engaged in the duties of his or her position wear in plain sight, on his or her person and at chest level, a valid identification badge, issued by Operator.
f. Employee Background Checks/Procedures for Inventory Control to Prevent Diversion of Cannabis. Only employees who receive clearance from Operator shall be permitted to enter Operator’s facility. Each employee will have to meet a criminal background investigation conducted by the Barstow Police Department, which at minimum shall include a LiveScan criminal history check, which City shall make a good faith effort to facilitate within a reasonable time following the issuance of a Commercial Cannabis Permit(s) or license(s) to Operator.
Operator shall take all necessary and reasonable steps to prevent the distribution of any of its cannabis products to minors; prevent revenue from the sale or distribution of its cannabis and/or infused products from going to criminal enterprises, gangs and cartels; prevent the diversion of cannabis from California to any other state; prevent state-authorized cannabis activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; prevent violence and the use of firearms in the retail sale of cannabis; discourage and educate against drugged driving and the exacerbation of other adverse public health consequences associated with cannabis use; disavow growing cannabis on public lands that creates attendant public safety and environmental dangers posed by such illegal uses; and discourage and educate against cannabis possession or use on federal property. g. Quality Control and Testing. Operator shall utilize quality control measures and testing to ensure only the highest quality of commercial cannabis and infused products will be produced.
Operator shall inspect the product to ensure its identity and quantity and shall have a testing lab perform testing of random samples prior to distribution. Inspection and testing will be conducted by a testing lab off-site. Testing standards and procedures shall be in accordance with applicable state law and regulations.
All commercial cannabis products will undergo a quality assurance review in accordance with state law prior to distribution. Inventory procedures will be utilized for tracking and taxing purposes by the state. Operator shall employ an efficient record-keeping system to make transparent its financing, testing, and adverse effect recording, as well as recall procedures.
Operator shall employ an efficient record-keeping system that will reflect its financing, testing, and adverse effect recording and product recall procedures. h. Packaging of Commercial Cannabis and Infused Products. All Operator commercial cannabis products shall be packaged and labeled as required by California Cannabis Law and applicable requirements and regulations issued by the State of California pursuant thereto. In addition to those packaging and labeling requirements, and packaging and labeling requirements set forth in Operator’s Commercial Cannabis Permit application, as amended or supplemented, all commercial cannabis products shall be packaged in an opaque childproof
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container which shall contain a label or be accompanied by a leaflet or inset those states, at a minimum:
1) The name, address, and telephone number of the licensed commercial cannabis facility to which the commercial cannabis product is distributed, sold, or transferred. 2) The amount of commercial cannabis in the container; and 3) The date the commercial cannabis was transferred to a licensed commercial cannabis facility.
i. Point of Sale Tracking System. Operator shall maintain an inventory control and reporting system that accurately documents the location of cannabis products from inception through distribution, including descriptions, weight, and quantity. The inventory control and reporting system shall comply with the track and trace program required by California Cannabis Law and regulations issued thereunder. The Operator will make such records available to the City upon request.
Operator shall employ an electronic point of sale system approved by the State of California for all point of sales tracking from seed or inception to product distribution to other licensed commercial cannabis facilities. Such approved system shall track all commercial cannabis products, each edible, harvested flower, and/or manufactured concentrate, as well as gross sales (by weight and sale). Operator's point of sale system shall have the capacity to produce historical transactional data in accordance with City's requirements. j. Record Keeping. Operator shall maintain records for all commercial cannabis and/or infused products. Operator shall comply with all record-keeping responsibilities that are set forth in Ordinance No. 977-2021, including complete and up-to-date records regarding the amount of commercial cannabis stored, delivered or sold at Operator’s facility]. k. Handling, Storing, and Distribution of Commercial Cannabis and Related Products.
Commercial cannabis retail sales, handling, storing, or distribution shall not create offensive odors; create excessive dust, heat, noise, smoke, traffic, or other impacts that are disturbing to people of normal sensitivity residing or present on adjacent or nearby property or areas open to the public; or be hazardous due to use or storage of materials, processes, products, or wastes.
Operator shall store its commercial cannabis and/or commercial cannabis products in a locked safe room with T-card identification access for management only. The safe room shall be constructed of fire-rate walls with numerous cameras installed to view all entries and exits from the safe room, as well as all other activities performed within Operator’s facility. Operator will not conduct outdoor operations except as related to lawful delivery and transportation of medicinal commercial cannabis and infused products. Operator will not store medicinal commercial cannabis or related products in its delivery vehicle outside normal operating hours of the facility.
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Commercial cannabis products shall be sold only to licensed facilities in California. Excess or contaminated product will be securely stored on-site until it is properly disposed. Disposal may include composting, incineration, land-fill disposal through the local waste management hauler, or other disposal methodology in accordance with state and county health and safety codes and regulations.
l. Odor Control. All structures shall have ventilation and filtration systems installed that prevent commercial cannabis plant odors from exiting the interior of the structure. The ventilation and filtration system shall be approved by the Building Official and installed prior to commencing cannabis operations within the allowable structure. Facility air intake, exhaust, and recirculating system shall be of industrial grade. Activated charcoal, recirculating, and closed loop aeration systems will be utilized as necessary for effective odor control and management.
See minimum requirements, pursuant to Section 5.61.280(12). m. Description of Banking Plan. Operator shall seek to open a bank account under the name of Operator or its associated management company to provide transparency for funds received, operational costs, including payroll, tax payments to the state and federal governments. Should a bank account not be forthcoming, Operator shall implement other industry standard banking and/or other industry standard transactional mechanisms. n. Transportation Plan. Operator shall comply with all state and local law regarding transportation, including the rules governing delivery service. Operator shall retain a list of names and cellular contact numbers for all employees engaged in transportation of commercial cannabis products and provide it to the applicable oversight authority, keeping the list current and up to date.
Operator will keep complete and up-to-date records documenting each transfer of commercial cannabis to other lawful cooperative corporations, including the amount provided, the form or product category in which the commercial cannabis was provided, the date and time provided, the name of the employee making the transfer, the name and address of the other lawful cooperative corporation to whom delivery is made, and the amount of any related donation or other monetary transaction.
5. Community Relations, Employment, and Wages
a. Public Outreach and Education Program. The Operator shall coordinate and cooperate with City and other Operators of commercial cannabis facilities located within City of Barstow in the establishment and implementation of appropriate public outreach and education programs, including but not limited to working with each cannabis business to create awareness for the community. The public outreach and education programs shall be approved by City. b. Community Benefits Program. The Operator shall coordinate and cooperate with the City and other Operators of commercial cannabis facilities located within the City of Barstow in
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the establishment, implementation, and funding of a community benefits program which could include such items as senior citizen programs, City beautification efforts, funding for enforcement against illegal cannabis operations, public safety, housing programs, economic development, infrastructure, capital improvements, including expansion and/or improvement to existing facilities or other physical improvements that provide a benefit to the community, support of holiday and special community events, and support of local public service, public safety, litigation defense, and special social and community organizations. This community benefits program may be implemented by the City. The City may invite public participation in the decision-making process for identifying and prioritizing community needs and benefits and identifying appropriate projects to be funded by the entity implementing this community benefits program. All projects under the community benefits program must be approved by the City.
Operator agrees, as a business expense, to pay the City the yearly sum of $60,000. Unless initialed below by the City Manager, this yearly sum shall be deposited in full into a dedicated account set up by the City in order to create, fund and implement a City-approved community benefits program. The community benefits program funds shall be spent only as directed by the City Council and shall be separately accounted for within the City’s General Fund.
c. Designation of Community Relations Liaison. Pursuant to Ordinance No. 977-2021, at the time of this Agreement, Operator’s day-to-day operations manager, who is to be determined upon commencement of business operations, will be responsible for community inquiries and complaints and on-site management during normal business hours. d. Interface with Barstow Police Department / Inspections. Operator’s day-to- day operations manager, and/or the Operator’s Community Relations Liaison, DeRon Waller, will interface with the Barstow Police Department's assigned designee to ensure its operation complies with state and local laws and regulations. The City Manager, or designee, or the Barstow Police Department's assigned designee acting at the City Manager’s request and per his specific and limiting instructions, shall have the right to enter all Premises from time to time unannounced during hours of operation for the purpose of making reasonable inspections to observe and enforce compliance with this Agreement and state and local laws and regulations, without the requirement of a search warrant, subpoena, or court order, and subject to appropriate cost recovery fees set forth in this Agreement, or adopted by the City. e. Local Recruitment, Hiring, and Training Programs. Operator is committed to making a good-faith effort to recruit, hire, and train City residents for employment by Operator. A goodfaith effort means Operator shall take the following or similar actions to recruit and employ City residents: 1) Contact local recruitment sources to identify qualified individuals who are City residents, 2) Advertise for qualified City residents in trade papers and newspapers of general circulation in the area, and 3) Develop a written plan to recruit and employ City residents as a part of its workforce. At a minimum, the Operator commits to a good faith local annual hiring goal of 40% of total work hours for permanent and apprentice employees. This goal shall apply horizontally, across all departments and managerial positions. The Operator shall not be
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penalized or deemed in default under this Agreement if it is unable to achieve such a goal. "Local" is defined as within a 3-mile radius of the boundaries of the City’s boundaries. The purpose of the hiring policy is to facilitate the training and employment of local and disadvantaged job applicants for jobs within the City’s jurisdiction, and 3-mile radius of City boundaries. The Operator shall report on compliance with the local hiring goals as part of its annual audit report.
f. Full-time Work. Operator shall make its best efforts to fill every position with a full-time employee. However, at no time shall Operator have a labor force that is composed of less than 50% full-time employees within its labor force, and Operator shall make a good faith effort to maintain a full-time employee level of 75%. Operator agrees to provide to its eligible employees leave benefits, health and wellness benefits and other employee benefits to the extent such benefits are required to be paid for by Operator under applicable state and federal employment laws.
6. Indemnification Agreement by each Cannabis Permittee Pursuant to Ordinance No 977-2021, and to the fullest extent permitted by local, state and/or federal law, the City of Barstow shall not assume any liability whatsoever with respect to having issued a Commercial Cannabis Permit or executed a Development Agreement pursuant Ordinance No 977-2021, or otherwise approving the operation of any commercial cannabis business. As a condition to the approval of any Commercial Cannabis Permit and to the execution and approval of a Development Agreement, the Operator shall be required to meet all the conditions enumerated in the Barstow Municipal Code before they can receive the Commercial Cannabis Permit and before this Agreement may be executed. The City Manager shall require each Commercial Cannabis Permittee to execute an Indemnification Agreement prepared by the City that fully indemnifies the City for all liabilities associated with the Commercial Cannabis Permit, the Commercial Cannabis Permittee's Commercial Cannabis Activities, and any action taken by the Cannabis Permittee. The Indemnification Agreement shall include the defense of the City and reimbursement of all fees, costs and expenses incurred by the City related to any action arising from this Agreement. Attached as Exhibit F, and incorporated herein by this reference, is true and correct copy of a fully executed Indemnification Agreement.
7. Fees, Costs, and Future Taxes
a. Fees. Operator agrees to pay all permit fees and charges adopted by City Council by Fee Resolution pursuant to Chapter 19.27 of the Barstow Municipal Code, as well as any fees set forth in this Agreement. Permit application, processing, and renewal fees shall be due and payable at the time application is made. The following fee payment obligations are imposed on the cannabis business Operator and not on the Owner.
b. Costs. Operator agrees to reimburse City for all additional reasonable costs of City resulting from the operation of a commercial cannabis facility authorized under applicable
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provisions of the municipal code, Council resolutions and administrative policies and regulations. Reimbursement to City for such costs shall be due and payable. c. Operating Fees.
As used herein, “Premises” means the designated structure or structures and land specified in the application that is owned, leased, or otherwise held under the control of the Commercial Cannabis Permittee applicant or Commercial Cannabis Permittee where the Commercial Cannabis Activity will be or is conducted. The parties stipulate and agree that the square footage for the Premises upon the Effective Date of this Agreement is and shall be during the term of this Agreement: 2,960 square feet.
As used herein, “Commercial Cannabis Activities” means all permitted activities: e.g., delivery, or sales of Cannabis and/or Cannabis Products.
As used herein, “Gross receipts” shall mean the total amount actually received or receivable in the course of business in a calendar year or calendar month from sales or the performance of acts or services for which charge is made or credit allowed. “Gross receipts” include, without limitation, all receipts, cash, credit, property received in lieu of cash, and any other valuable consideration taken in exchange for goods, services, or other valuable consideration.
As used herein, "Production Space" means the area on or within the Premises intended for Commercial Cannabis Activities excluding non-operational common areas such as restrooms, break rooms, hallways, corridors, vestibules, or parking lots. The parties stipulate and agree that the square footage for the Production Space shall be determined by the City Manager in his sole and complete discretion as the Project is completed.
The City Manager is specifically authorized to set and adjust the square footage for the Production Space and to determine the corresponding operating fee as the Project is completed.
Operator agrees to pay to City, in order to enable City to promote, protect, and enhance the healthy, safety, and welfare of the community and its residents and its quality of life, the following fees if the City were ever to approve the Operator holding a holding a Cannabis Cultivation Permit or Cannabis Manufacturing Permit:
a yearly operating fee of Five Dollars ($5) per square foot x total square footage of the "Premises" until Operator is operating on the Premises and selling product under its City CCP and State License(s). Once Operator is operational and generating revenue, the yearly operating fee is Five Dollars ($5) per square foot x total square footage of the Premises. Fees shall be paid on December 31st of every year. Failure to pay the fee within 30 days after the due date shall result in an additional penalty for nonpayment in a sum equal to 25 percent of the total amount due.
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Operator, as a holder of a Commercial Cannabis Retail Storefront Facility with Delivery Permit by virtue of this Agreement, shall pay to the City the following Operating Fees:
a monthly operating fee(s) of:
3% (three percent) of Gross Receipts for operations from the Cannabis Non-Storefront Retail Delivery Permits and Cannabis Storefront Retail Permits, to be paid monthly. Fees shall be due to the City on 1st of the month. Failure to pay the fee within 30 days after the due date shall result in an additional penalty for nonpayment in a sum equal to 25 percent of the total amount due.
Facilities with multiple licenses must not commingle respective sales proceeds, and blend percentage rate of Gross Receipts.
d. Operator understands and agrees that the fees set forth above shall be paid in a manner and in accordance with a payment schedule set or modified by City. The sales and delivery space to which the fee applies is as identified on the attached floor plan. e. If Operator makes any changes to the interior layout of the facility that increases the amount of space allocated to those uses to which the per-square- foot fee applies, Operator shall notify City of such changes at least fourteen (14) calendar days prior to making such changes, and the per-square-foot fee shall be modified accordingly. If Operator fails to give City notice as required herein, Operator shall be responsible for paying to City a per-square-foot fee based on any increase in the amount of space allocated to those uses to which the per-squarefoot fee applies retroactive to the date the Regulatory Permit became effective. f. The City Council hereby directs that fifty percent (50%) of the Operating Fees collected per Section 7(c) of this Agreement shall be used by the City for public safety costs, inclusive of funding for the Barstow Police Department and the Barstow Fire Protection District.
8. Cost Recovery Fee
In addition to the applicable application fees, community benefits payment, and City operating fees, Operator agrees to pay, and City shall assess to Operator fees to recover City’s reasonable processing and monitoring costs relating to Operator’s business upon issuance of Operator’s Storefront Retailer Permits or any Additional Permits (hereinafter “CRF”). CRFs are separate and apart from any operating fees set forth in Article 7. The Operator shall pay all such fees per the cannabis fee scheduled as adopted by the City Council by Resolution. a. Processing Fees. Processing fees for the Application are based upon the direct and indirect costs that City incurs in reviewing the Application. The processing fees for the Application shall be based only on costs that are reasonably necessary for processing the Application and implementing the Ordinance, including staff time, legal fees, and consultant fees.
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b. Annual Regulatory and Monitoring Fees. Annual Regulatory and Monitoring fees for the Storefront Retail Permits are based upon the direct and indirect costs City incurs in confirming the use of the Property in accordance with the municipal code, the Ordinance, this Agreement, and the Application. The monitoring fees shall be based only on costs that are reasonably necessary for conducting these reviews.
c. Billing and Payment. The City may elect to bill the Operator the Initial CRF on the first day of the month following the Effective Date of this Agreement. Thereafter, City shall bill Operator the CRF on the first day of each Quarter with an invoice providing the time spent by City and its representatives. Operator shall pay the CRF invoice within thirty (30) days of the invoice date.
d. Disputes. If Operator disagrees with the dollar amount provided by City on the CRF invoice, Operator may submit a written request before the disputed fee is due for a substitution of alternative CRF invoice to the City Manager. The written request must include supporting documentation. After review of the written request, Operator, or Owner if Owner and Operator are the same entity, and City shall work, in good faith to resolve the dispute.
9. Additional Operator Obligations
a. Reporting of Gross Receipts from Operations
1) Quarterly Receipts. No later than, and every three months thereafter, Operator shall deliver to City a report (the “Quarterly Report”) showing the following information for the cannabis business authorized under this Agreement: (i) Gross Receipts from operations for the immediate prior three months received by Operator, and a cumulative total of all amounts of Gross Receipts from Operations received by Operator for the calendar year, (ii) a calculation of the quarterly payment due to City for the prior three months, and (iii) a calculation of the cumulative total of all quarterly payments for the calendar year. This reporting obligation is imposed on the cannabis business Operator and not on the Owner if the Owner is solely a landlord and not also a listed permittee or operator of the cannabis business. 2) Statement of Receipts/Annual Audit. The Operator shall keep complete, accurate and appropriate books and records of all receipts from all cannabis business operations in accordance with generally accepted accounting principles. For purposes herein, “books and records” shall mean all bookkeeping or accounting documents Operator typically utilizes in managing its business operations relating to the Project. Such books and records, as well as all other relevant documents as the City Manager may reasonably require, shall, upon reasonable written notice, be open for inspection by City, its auditors, or other authorized representatives.
If at any time during the term such books and records prove inadequate in the reasonable judgment of City to record the Gross Receipts from Operations as herein required, Operator shall, upon the written request of the City, procure and maintain such books and records as shall be of a character and from adequate for such purpose. City shall have the right to audit and
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examine such books, records and documents and other relevant items in the possession of Operator, on no less than an annual basis, or at any time upon reasonable request by the City, to the extent necessary for a proper determination of Gross Receipts from Operations, and all such books, records, documents and other items shall be held available for such audit and examination. The City’s audit shall be performed by a non-contingency fee independent auditor approved in advance by the City. Upon request by City, Operator shall make all such books, records, and documents available to the City Manager, his designee, or to the City approved auditor, and provide removable copies thereof, within thirty (30) of the date of City’s request.
Operator shall pay all costs of such audits. Operator shall preserve such books, records, documents, and other items in Barstow for a period of not less than one (1) years for the purpose of auditing or re-auditing these accounts upon reasonable notice; except that, if an audit is made within the seven-year period and Operator claims that errors or omissions have occurred, the books and records shall be retained and made available until those matters are resolved. City shall keep strictly confidential all statements of revenue furnished by Operator and all other information concerning Operator’s operation of the Premises obtained by City as a result of the inspection audit and examination privileges of City hereunder, except as otherwise required by law. If City receives a request for such information pursuant to the Public Records Act (California Government Code Section 6250, et seq.), City shall provide Operator notice of any such request prior to disclosing any such information and afford Operator the opportunity to obtain a protective order. Within seven (7) years after the receipt of any statement of receipts under this Agreement, City at any time shall be entitled to carry out an audit of such revenue either by City or agent to be designated by City. If it shall be determined as a result of such audit that there has been a deficiency in any payment due under this Agreement made on the basis of such statement, then such deficiency shall become immediately due and payable within thirty (30) days of such determination.
1) Copies of Tax Filings. Operator shall provide the City with courtesy copies of each and every report Operator is required to provide to the County of San Bernardino, the State of California, and the Internal Revenue Service, as applicable, for sales, use, income, or other tax purposes for the cannabis business authorized by this Agreement at the time such filings are made. This reporting obligation is imposed on the cannabis business Operator and not on the Owner if the Owner is solely a landlord and not also a listed permittee or operator of the cannabis business. b. Future Revenue Mechanisms. During the term of this Agreement, if the City imposes (by Citizen Initiative or otherwise) an alternative revenue mechanism specifically related to cannabis operations (e.g., a cannabis tax), Operator agrees to renegotiate in good faith the terms of this Development Agreement with the City so as to comply with an alternative revenue mechanism. As used in this section, “alternative revenue mechanism” does not include taxes, fees, or assessments levied on or collected from both medicinal cannabis and non-cannabis operations.
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10. Insurance and Indemnity
a. Insurance. Operator shall require all persons doing work on the Project, including its contractors and subcontractors (collectively, “Operator)” for purposes of this Article 6 only), to obtain and maintain insurance of the types and in the amounts described in this section and its subsections with carriers reasonably satisfactory to City. b. General Liability Insurance. Operator shall maintain commercial general liability insurance or equivalent form with a limit of not less than Two Million Dollars ($2,000,000) (or as otherwise approved, in writing, by City) per claim and Two Million Dollars ($2,000,000) each occurrence. Such insurance shall also:
1) Name City, its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives as “Additional Insureds” by endorsement with respect to performance of this Agreement. The coverage shall contain no special limitations on the scope of its protection afforded to the above-listed additional insured. 2) Be primary with respect to any insurance of self-insurance programs covering City, its officials, employees, agents, and representatives.
3) Contain standard separation of insured provisions.
c. Automotive Liability Insurance. Operator shall maintain business automobile liability insurance or equivalent form with a limit of not less than Two Million Dollars ($2,000,000) for each accident for the vehicles Operator operates in connection with its cannabis business. Such insurance shall include coverage for owned, hired, and non-owned automobiles. Such insurance shall also:
1) Name City, and work in good faith with the City and the insurers to name additional insureds as deemed reasonably necessary. “Additional Insureds” by endorsement with respect to performance of this Agreement. The coverage shall contain no special limitations on the scope of its protection afforded to the above-listed additional insureds. 2) Be primary with respect to any insurance or self-insurance programs covering City, its officials, employees, agents, and representatives.
3) Contain standard separation of insured provisions.
d. Workers’ Compensation Insurance. Operator shall take out and maintain during the term of this Agreement, workers’ compensation insurance for all of Operator’s employees employed at or on the Project, and in the event any of the work is subcontracted, Operator shall require any general contractor or subcontractor similarly to provide workers’ compensation insurance for such contractor’s or subcontractor’s employees, unless such employees are covered by the protection afforded by Operator. In case any class of employee engaged in work on the Project
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is not protected under any workers’ compensation law, Operator shall provide and shall cause each contractor and subcontractor to provide adequate insurance for the protection of employees not otherwise protected. Operator hereby indemnifies City for any damage resulting from failure of Operator, its agents, employees, contractors, or subcontractors to take out or maintain such insurance. Workers’ compensation insurance with statutory limits and employer’s liability insurance with limits of not less than One Million Dollars ($1,000,000) each accident shall be maintained.
e. Other Insurance Requirements. Operator shall do all of the following:
1) Prior to taking any actions under this Agreement, furnish City with properly executed certificates of insurance that clearly evidenced all insurance required in this Article, including evidenced that such insurance will not be canceled, allowed to expire, or be materially reduced in coverage without thirty (30) days prior written notice to City. 2) Provide to City, upon request, and within seven (7) calendar days of said request, certified copies of endorsements and policies, and properly executed certificates of insurance evidencing the insurance required herein.
3) Replace or require the replacement of certificates, policies and endorsements for any insurance required herein expiring prior the termination of this Agreement. 4) Maintain all insurance required herein from the Effective Date of this Agreement to the earlier of the expiration of the term or the mutual written termination of this Agreement. 5) Place all insurance required herein with insurers licensed to do business in California with a current Best’s Key Rating Guide reasonably acceptable to City. f. Indemnity. Operator agrees to indemnify, defend, and hold City, and its elected and appointed council, boards, commissions, officers, agents, employees, contractors, consultants and representatives, harmless from any and all claims costs and liability for any personal injury or property damage which may arise as a result of any actions or negligent omissions by Operator or Operator’s contractors, subcontractors, agents, or employees in connection with the construction, improvement, or operation of the Project.
11. Termination
a. Termination Upon End of Term. This Agreement shall terminate upon the expiration of the term unless it is terminated earlier pursuant to the terms of this Agreement. Upon termination of this Agreement, City shall record a notice of such termination and this Agreement shall be of no further force or effect except as otherwise set forth in this Agreement. b. Effect of Termination on Operator’s Obligations. Termination of this Agreement shall eliminate any further obligation of Operator to comply with this Agreement, or some portion
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thereof, if such termination relates to only part of the Site or Project. Termination of this Agreement, in whole or in part, shall not, however, eliminate the rights of Operator to seek any applicable and available remedies or damages based upon acts or omissions occurring before termination.
c. Effect of Termination on City’s Obligations. Termination of this Agreement shall eliminate any further obligation of City to comply with this Agreement, or some portion thereof.
Termination of this Agreement shall not, however, eliminate the rights of City to seek any applicable and available remedies or damages based upon acts or omissions occurring before termination.
d. Survival After Termination. The rights and obligations of the Parties set forth in Article 15, Article 21, and Section 23(e), Section 23(f), and Section 23(h), and any right or obligation of the Parties in this Agreement which, by its express terms or nature and context is intended to survive termination of this Agreement, will survive any such termination. e. Termination Upon Failure to Perform. The Operator shall have two years after the Effective Date to commence operation of the commercial cannabis facility contemplated by this Agreement. Failure of the Operator to commence commercial cannabis operations within that two-year time period may constitute a default and City shall have the right, but not the obligation, to exercise its default remedies under Section 14. The Parties agree to negotiate in good faith regarding any reasonably necessary extensions of this deadline for good cause, such as may be shown as a result of circumstances delaying commencement of operations beyond the control of the Operator.
12. Resources Efficiency
Operator shall endeavor to reduce its environmental impact when possible. The design of the facility shall include reasonable water and energy conservation measures in accordance with applicable State regulations.
13. Standard Conditions for Construction
During any on-site construction activities related to development of the project site and any buildings thereon, or renovation or remodeling of existing buildings, Operator shall comply with all applicable terms and conditions of City’s Code, attached hereto and incorporated herein by reference as Exhibit G. The Project shall comply with the applicable parking standards established by the City for cannabis activities.
14. Defaults and Remedies
a. Remedies in general. It is acknowledged by the parties that City would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof, except as hereinafter expressly provided. Subject to
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extensions of time by mutual consent in writing, failure to delay by either party to perform any term or provision of this Agreement beyond a reasonable notice and cure period shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement, the party alleging such default or breach shall give the other party not less than thirty (30) day notice in writing specifying the nature of the alleged default and the manner in which said default may be satisfactorily cured during any such thirty (30) day period, the party charged shall not be considered in default for purposes of termination or institution of legal proceedings. Notwithstanding the foregoing to the contrary, if the alleged default is of such a nature that it cannot be cured within thirty (30) days, the alleged defaulting party shall not be deemed in default as long as such party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion.
After notice and expiration of the thirty (30) day period without a cure of such default, the other party to this Agreement, at its option, may terminate the Agreement or institute legal proceedings pursuant to this Agreement.
In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that City shall not be liable in monetary damages, to Operator), to any mortgagee or lender, or to any successors in interest of Operator or mortgagee or lender, or to any other person, and Operator covenants on behalf of itself and all successors in interest to the Property or any portion thereof, not to sue for damages or claim any damages.
1) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
2) For the impairment or restriction of any right or interest conveyed or provided under, with, or pursuant to this Agreement, including, without limitation, any impairment or restriction which Operator characterizes as a regulatory taking or inverse condemnation; or 3) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. b. Specific Performance. The parties acknowledge that money damages and remedies at law are inadequate, and specific performance and other non- monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
1) Money damages are unavailable against City as provided in Section 14(a) above. 2) Due to the size, nature, and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun.
After such implementation, Operator may be foreclosed from other choices it may have had to use the Property or portions thereof. Operator has invested significant time and resources and
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performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Operator for such efforts. By the same token, in the event that City issues any permit or other approval for a structure, and the public facilities, improvements, and infrastructure reasonably necessary to provide an adequate level of public services to that structure are not timely completed or Operator otherwise fails to carry out its obligations under this Agreement, then it would not be possible to determine a sum of money that would adequately compensate City for the resulting hardship. For the above reasons, City and Operator agree that, notwithstanding any other language in this Agreement, damages would not be an adequate or appropriate remedy if City fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is the only remedy which would compensate Operator if City fails to carry out its obligations under this Agreement, and City hereby agrees that Developers shall be entitled to specific performance in the event of a default by City hereunder. Further, specific performance of this Agreement is the only remedy which would compensate City if Operator fails to carry out their obligations under this Agreement, and Operator hereby agree that City shall be entitled to specific performance in such event.
c. Release. Except for those remedies set forth in Sections 14(a), 14(b), and 14(c), Operator, for itself, its successors and assignees, hereby releases City, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, based or asserted, pursuant to Article 1, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon City because it entered into this Agreement or because of the terms of this Agreement.
Operator acknowledges that it may have suffered, or may suffer, damages and other injuries that are unknown to it, or unknowable to it, at the time of its execution of this Agreement. Such fact notwithstanding, Operator agrees that the release provided in this Section 14(c) shall apply to such unknown or unknowable claims and damages. Without limiting the generality of the foregoing, Operator acknowledges the provisions of California Civil Code Section 1542, which provide:
“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.” Operator hereby waives, to the maximum legal extent, the provisions of California Civil Code Section 1542 and all other statutes and judicial decisions of similar effect. d. Attorneys’ Fees and Costs. In any action or proceeding between City and Operator brought to interpret or enforce this Agreement, or which in any way arises out of the existence of this Agreement or is based upon any term or provision contained herein, the “prevailing
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party” in such action or proceeding shall be entitled to recover from the non-prevailing party, in addition to all other relief to which the prevailing party may be entitled pursuant to this Agreement, the prevailing party’s reasonable attorneys’ fees and litigation costs, in an amount to be determined by the court. The prevailing party shall be determined by the court in accordance with California Code of Civil Procedure Section 1032. Fees and costs recoverable pursuant to this Section 14(e) include those incurred during any appeal from an underlying judgment and in the enforcement of any judgment rendered in any such action or proceeding. e. Operator Default. No building permit shall be issued or building permit application accepted for any structure on the Property after Operator is determined by City to be in default of the terms and conditions of this Agreement until such default thereafter is cured by Operator or is waived by City. If City terminates this Agreement because of Operator’s default, then City shall retain any and all benefits, including money or land received by City hereunder.
15. Third Party Litigation
a. General Plan Litigation. City has determined that this Agreement is consistent with its General Plan and all applicable special plans. Operator has reviewed the General Plan and concurs with City’s determination.
City shall have no liability under this Agreement or otherwise for any failure of City to perform under this Agreement, or for the inability of Operator to develop the Property as contemplated by the Agreement, including, but not limited to, if such failure to perform or inability to develop is the result of a judicial determination that the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law, or that this Agreement or any of City’s actions in adopting it were invalid, inadequate, or not in compliance with the law. b. Hold Harmless Agreement. Operator hereby agrees to, and shall hold City, its elective and appointive boards, commissions, officers, agents, attorney's, contractors, consultants and employees harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may arise from Operator or Operator’s contractors, subcontractors, agents, or employees’ operations under this Agreement, whether such operations be by Operator, or by any of Operator’s contractors, subcontractors, agents, or employees operations under this Agreement, whether such operations be by Operator, or by any of Operator’s contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Operator or any of Operator’s contractors or subcontractors. Operator agrees to and shall defend City and its elective and appointive boards, commissions, officers, agents and employees from any suits or actions at law or in equity for damage caused, or alleged to have been caused, by reason of any of the aforesaid operations.
c. Indemnification. Operator shall defend, indemnify, and hold harmless City and its elective and appointive boards, commissions, officers, agents, attorney's, contractors, consultants, and employees against and from any and all liabilities, demands, claims, actions or
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proceedings and costs and expenses incidental thereto (including costs of defense, settlement and reasonable attorneys’ fees), which any or all of them may suffer, incur, be responsible for or pay out as a result of or in connection with any challenge to the legality, validity or adequacy of any of the following: (i) this Agreement and the concurrent and subsequent permits, licenses and entitlements approved for the Project or Property, and all activities conducted under such entitlements; (ii) the environmental impact report, mitigated negative declaration or negative declaration, as the case may be, prepared in connection with the development of the Property; (iii) any claims based on or alleging inverse condemnation by any person or entity with an interest in the Property; and (iv) the proceedings undertaken in connection with the adoption or approval of any of the above. In the event of any legal or equitable action or other proceeding instituted by any third party (including a governmental entity or official) challenging the validity of any provision of this Agreement or any portion thereof as set forth herein, the parties shall mutually cooperate with each other in defense of said action or proceeding. Notwithstanding the above, City, at is sole option, may tender the complete defense of any third-party challenge as described herein. In the event City elects to contract with special counsel to provide for such a defense, City shall meet and confer with Operator regarding the selection of counsel, and Operator shall pay all costs related to retention of such counsel. d. Environmental Contamination. Operator shall indemnify and hold City, its elective and appointive boards, commissions, officers, agents, attorney's, contractors, consultants and employees free and harmless from any liability, based or asserted, upon any act or omission of Operator, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors, excepting and acts or omissions of City as successor to any portions of the Property dedicated or transferred to City by Operator, for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and Operator shall defend, at its expense, including attorneys’ fees, City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such claim, action or proceeding.
e. City to Approve Counsel. With respect to Sections 15(a) through 15(d), City shall approve any counsel which Operator selects, hires, or otherwise engages to defend City hereunder, which approval shall not be unreasonably withheld.
f. Survival. The provisions of Sections 15(a) through 15(f) inclusive, shall survive the termination or expiration of the Agreement.
16. California Environmental Quality Act
Operator shall reimburse City for any and all costs incurred by City related to project review under the California Environmental Quality Act (CEQA), Public Resources Code, §§21000- 21189.3, and the Guidelines for California Environmental Quality Act, California Code of
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Regulations, Title 14, §§15000-15387. If reasonably requested by City, Operator shall conduct and pay for any required CEQA reviews and analyses.
17. Rules, Regulations, and Official Policies
Except as otherwise provided in this Agreement, the rules, regulations, and official policies of City governing permitted uses of the land, governing density, and governing the design, improvements, and construction standards and specifications applicable to the development of the Project subject of this Agreement, shall be those rules, regulations, and official policies of City in force at the time of the execution of this Agreement. This Agreement does not prevent City, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor does this Agreement prevent City from denying or conditionally approving any subsequent development project application based on such existing or new rules, regulations, or policies.
18. Commercial Cannabis Permit Conditions of Approval
Operator shall comply with all conditions of approval of the City-issued Commercial Cannabis Permit and Conditional Use Permit.
19. Periodic Reviews
This Agreement shall be subject to annual review. Operator and Landlord executing this Agreement, or successor in interest thereto, shall demonstrate good faith compliance with the terms of this Agreement. If, as a result of such periodic review, City finds and determines, based on substantial evidence, that Operator or Landlord executing this Agreement, or successor in interest thereto, has not complied in good faith with the terms or conditions of this Agreement, City may terminate or modify this Agreement (except no modification shall increase Operator’s liability nor reduce Operator’s rights), provided that City shall first provide Operator notice of its intent to terminate, with a detailed explanation as to why, and provide Operator the reasonable right to cure the same.
a. Periodic Review. City Council shall review this Agreement annually, on or before each anniversary of the Effective Date, in order to ascertain Operator’s good faith compliance with this Agreement. During the periodic review Operator shall be required to demonstrate good faith compliance with the terms of the Agreement, through submitting an annual monitoring report, records, or equivalent written materials to the Planning Department. The Planning Department will schedule a hearing on the periodic review of the Development Agreement on or following the anniversary of the Effective Date, but Operator has no obligation to compel such hearing, and no implication will be made to Operator)’s detriment if a hearing is not in fact held. Operator shall document any request for an extension of the term due to delays beyond the control of Operator (see Section 23(j), “Force Majeure”). Operator shall submit an annual review and administration fee deposit not to exceed City’s estimated internal and third-party
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costs associated with the review and administration of this Agreement during the succeeding year, consistent with Section 23(k) (“Deposit with City”) below. City shall provide Operator said estimate a reasonable time in advance of the annual review and administration fee deposit being due.
b. Conditional Use Permit. In additional the Commercial Cannabis Permit, Operator shall apply for and obtain a Conditional Use Permit for the establishment and operation of its business. The operation of the business at all times shall be required to comply with the terms of this Agreement and the Conditional Use Permit.
c. Special Review. City Council may order a special review of compliance with this Agreement at any time. The Planning Director or his or her designee shall conduct such special review. During a special review, Operator shall be required to demonstrate good faith compliance with the terms of the Agreement. The burden of proof on this issue shall be on Operator.
d. Review Hearing. At the time and place set for the review hearing, Operator shall be given an opportunity to be heard. If City Council finds, based upon substantial evidence, that Operator has not complied in good faith with the terms or conditions of this Agreement, City Council may terminate this Agreement notwithstanding any other provision of this Agreement to the contrary, or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of City. The decision of City Council shall be final, subject only to judicial review pursuant to Code of Civil Procedure Section 1094.5. e. Certificate of Agreement Compliance. If, after a periodic or special review, Operator is found to be in compliance with this Agreement, and if Operator requests it, City shall issue a Certificate of Agreement Compliance (“Certificate”) to Operator stating that after the most recent periodic or special review, and based upon the information known or made known to the Planning Director and City Council, that (i) this Agreement remains in effect and (ii) Operator is not in default. City shall not be bound by a Certificate if a default existed at the time of the periodic or special review but was concealed from or otherwise not known to the Planning Director and City Council, regardless of whether the Certificate is relied upon by assignees or other transferees or Operator.
f. Failure to Conduct Review. City’s failure to conduct a periodic review of this Agreement shall not constitute a breach of this Agreement.
g. Cost of Review. The costs incurred by City in connection with the periodic reviews shall be borne by Operator.
20. Assignment
Assignment by Operator. Operator shall not transfer, delegate, sublet or assign its interest, rights, duties, and obligations under this Agreement without the prior written consent of City,
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which consent shall not be unreasonably withheld. Operator shall submit a transfer application to the City Manager or City Manager’s designee and pay any applicable transfer fee. The proposed transferee must show proof of lawful transfer of possession of the applicable location as may be acceptable to the City. Operator is aware it may take the City approximately six (6) months to process a transfer application.
Any assignment, delegation, subletting or assignment without the prior written consent of City shall be null and void. Any transfer, delegation, subletting or assignment by Operator as authorized herein shall be effective only if and upon the party to whom such transfer, delegation, subletting, or assignment is made is issued a Commercial Cannabis Permit as required under the Barstow Municipal Code.
21. Operating Commercial Cannabis Facility
Any party to this Agreement, or successor in interest thereto, shall not operate a commercial cannabis facility authorized under the municipal code unless:
a. It is the holder of a valid Commercial Cannabis Permit issued by City in accordance with the procedures and requirements or the Enabling Ordinance, and Chapter 19.27 of the Barstow Municipal Code; and,
b. It is the holder of a valid license issued by the State of California to operate a commercial cannabis business.
22. Notice
Any notice or communication required hereunder between City and Operator must be in writing, and may be given either personally, by registered or certified mail (return receipt requested), or by Federal Express, UPS or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered, as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:
If to City: City of Barstow
220 E. Mountain View Street, CA 92311
Attention: City Manager
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and City Attorney
790 E. Colorado Boulevard
Suite 850
Pasadena, California 91101
If to Operator:
Shryne Barstow LLC dba STIIIZY Barstow
728 E Commercial St.
Los Angeles, CA 90012
If to Landlord:
JC Investments LLC
2560 High Point Pkwy
Barstow, CA 92311
23. Miscellaneous Provisions
a. Amendment or Cancellation. This Agreement may be amended, or canceled in whole or in part, only by the written mutual consent of the parties to this Agreement or their successors in interest, except those minor amendments that do not affect a substantive provision of this Agreement may be approved by the City Manager on behalf of the City. The decision whether a proposed amendment is “minor” shall be in the exclusive discretion of the City Manager. c. Waiver. Waiver by City of any one or more of the terms or conditions of this Agreement shall not be construed as waiver of any other term or condition under this Agreement. d. Enforcement/Reserved Powers. Unless amended or canceled pursuant hereto, this Agreement shall be enforceable by any party hereto, or successor in interest thereto, notwithstanding any subsequent change in any applicable general or specific plan, zoning, subdivision or building regulation, or municipal code amendment adopted by City that conflicts with the terms of this Agreement. However, this Agreement is subject to the City's "Reserved Powers." For purposes of this Agreement, "Reserved Powers" means the rights and authority excepted from this Agreement's restrictions on the City's police powers and which are instead reserved to the City. The Reserved Powers include the powers to enact regulations or take future discretionary actions after the Effective Date of this Agreement that: (1) are necessary to protect the public health and safety, and are generally applicable on a City-wide basis (except in the event of natural disasters as found by the City Council such as floods, earthquakes and similar acts of God); (2) are amendments to California Cannabis Laws or California Uniform Codes, as adopted by the City of Barstow, and/or the Barstow Municipal Code, as applicable, regarding the construction, engineering and design standards for private and public improvements to be constructed on the Site; (3) are necessary to comply with state or federal laws and regulations; or (4) involve sign and parking ordinances and guidelines, changes to the
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City’s zoning laws, Specific Plan or the City's General Plan, whether adopted previous or subsequent to the Effective Date of this Agreement).
If any City ordinance, rule or regulation or addition to the Barstow Municipal Code is enacted or imposed by a citizen-sponsored initiative or referendum after the Effective Date that would conflict with this Agreement or an associated Commercial Cannabis Permit, business license or other authorizations and City approvals, or reduce development rights or assurances provided to the Operator in this Agreement, then such changes, additions or deletions to the Barstow Municipal Code shall not be applied to the Site or Project; provided, however, the parties acknowledge that the City's approval of this Agreement is a legislative action subject to referendum. The parties shall cooperate with each other and undertake such reasonable actions as may be appropriate to ensure this Agreement remains in full force and effect and is implemented in accordance with its terms and to the fullest extent permitted by state or federal law.
Notwithstanding anything to the contrary in this Agreement, site improvements contemplated by this Agreement shall be completed pursuant to the development standards and design guidelines to be adopted by the zoning code amendment.
e. Joint and Several Liability. Operator shall be jointly and severally liable for any amount due under this Agreement, and any breach of this Agreement or failure to pay by one Party shall also constitute a breach of this Agreement by the other Party. f. Severability. If any part of this Agreement is found to conflict with applicable state laws or regulations, such part shall be inoperative, null, and void insofar as it conflicts with said laws or regulations or modified or suspended as may be necessary to comply with such state laws or regulations, but the remainder of this Agreement shall continue to be in full force and effect. g. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The execution of this Agreement may be by actual, facsimile, or electronic signature.
h. Jurisdiction. The law governing this Agreement shall be that of the State of California.
Any suit brought by any party against any other party arising out of the performance of this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, shall be filed and maintained in the County of San Bernardino Superior Court. i. Disclaimer. Despite California’s commercial cannabis laws and the terms and conditions of this Agreement, any Conditional Use Permit, or any Commercial Cannabis Permit issued pertaining to Operator, or the property specified herein, California commercial cannabis cultivators, transporters, distributors, or possessors may still be subject to arrest by state or federal officers and prosecuted under state or federal law. The Federal Controlled Substances
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Act, 21 USC § 801, prohibits the manufacture, distribution, and possession of cannabis without any exemptions for medical use.
j. Force Majeure. If delays are caused by unforeseen events beyond the control of Operator, such delays will entitle Operator to an extension of time as provided in this section.
Such unforeseen events (“Force Majeure”) shall mean war, insurrection, acts of God, local, state, or national emergencies, strikes and other labor difficulties beyond the party’s control, or any default by City hereunder, which Force Majeure event substantially interferes with the development, construction or operation of the Project.
k. Constructive Notice and Acceptance. Every person who after the Effective Date and recording of this Agreement owns or acquires any right, title, or interest to any portion of the Site, is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Site, and all rights and interests of such person in the Site shall be subject to the terms, requirements, and provisions of this Agreement.
l. Binding Effect of Agreement. The Parties agree that the Recitals above are true and correct and intend to be bound by same. Except as otherwise provided, the burdens of this Agreement are binding upon, and the benefits of this Agreement inure to, all authorized successors-in-interest of the Parties and constitute covenants which run with the Site. In order to provide constructive notice thereof, the City Clerk will record this Agreement with the San Bernardino County Recorder within the period required by Government Code Section 65868.5. m. Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and the Operator is that of a government entity regulating the development of private property and the Operator of such property.
n. Changes to Project. The parties acknowledge that changes to the Project or Development Plans and related approvals may be appropriate and mutually desirable to carry out the intent and purpose of this Agreement. This Agreement shall not prevent the City from applying, with the consent or at the request of the Operator. Subsequent Land Use Regulations or Subsequent Development Approvals that do not directly conflict with the Project, Site or Development Plan authorized under this Agreement. The granting of one such change, or request shall not obligate the City to grant other similar changes or requests. As used herein, “Subsequent Development Approvals” include, without limitation, all excavation, grading, building, construction, demolition, encroachment or street improvement permits, occupancy certificates, utility connection authorizations, or other non-discretionary permits or approvals
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necessary, convenient or appropriate for the Project. As used herein, “Subsequent Land Use Regulations” means ordinances, resolutions and codes adopted or approved by the City after the Effective Date of this Agreement governing the development and use of the land, including general plan amendments, zone changes, variances or conditional use permits affecting the permitted use of the land including density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions of reservation or Dedication of land for public purposes, and the design, improvement and construction and initial occupancy standards and specifications applicable to the Development of the Property. o. Conflicting Federal or State Rules. In the event that any conflicting federal or state laws or regulations, enacted after the Effective Date, prevent, or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, this Agreement shall remain in full force and effect as to those provisions not affected; and
(i) Notice of Conflict. Either party, upon learning of any such matter, will provide the other party with written notice thereof and provide a copy of any such law, regulation, or policy together with a statement of how any such matter conflicts with the provisions of this Agreement; and
(ii) Modification Conferences. The parties shall, within thirty (30) days of the notice referenced to in the preceding subsection, meet and confer in good faith and attempt to modify this Agreement to bring it into compliance with any such federal or state law or regulation. (iii) City Council Hearings. In the event the City believes that an amendment to this Agreement is necessary due to the effect of any federal or state law or regulation, the proposed amendment shall be scheduled for hearing before the City Council. The City Council shall determine the exact nature of the amendment necessitated by such federal or state law or regulation. Operator shall have the right to offer oral and written testimony at the hearing. Any modification ordered by the City Council pursuant to such hearing is subject to judicial review in accordance with California law.
(iv) Minor Amendments. A minor modification is a modification that does not modify the material terms of this Agreement including (1) the Term; (2) Facility Operations; (3) Indemnification; and (4) Fees. Minor Modifications shall not require a public hearing prior to execution of the modification to this Agreement. Either Party may propose a minor modification, consent to which shall not be unreasonably withheld, conditioned or delayed by the other Party. Upon the written request of Developer for a modification to this Agreement, the City Manager or his/her designee shall determine: (1) whether, in his/her reasonable judgment, the requested modification constitutes a minor modification as defined herein; (2) whether the requested modification is consistent with applicable law (other than that portion of this Agreement sought to be modified); and (3) whether, in his/her reasonable judgment, the requested modification tends to promote the goals of this Agreement. If the City Manager or his/her designee determines that the requested modification is minor modification that is
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consistent with applicable law and tends to promote the goals of this Agreement, the proposed modification will be approved by the City as a minor modification, and a written modification will be executed by the Parties and attached to this Agreement. Any such minor modification shall not be deemed an “amendment” to this Agreement under Government Code Section 65858.
(v) City Cooperation. The City shall cooperate with Operator in securing any City permits, licenses or other authorizations that may be required as a result of any amendment resulting from actions initiated by the City. As required by this Agreement, Operator shall be responsible to pay all applicable fees in connection with securing of such permits, licenses, or other authorizations.
q. Effective Date. “Effective Date” means the date on which all of the following are true: (i) thirty (30) days have elapsed since the second reading of the Ordinance adopting and approving this Development Agreement and (ii) all Exhibits to this Agreement are finalized, executed and notarized by all affected parties (if applicable) and attached hereto; provided, however, that if these conditions have not been fully satisfied by the Operator the Effective Date may not thereafter occur and this Agreement may not thereafter become effective.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
SHRYNE BARSTOW LLC CITY OF BARSTOW
"OPERATOR" "CITY"
By: Paul Anthony Courtney, Dr.,B.A., Mayor
Its:
JC INVESTMENTS LLC
"OWNER"
By:
Its:
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APPROVED AS TO LEGAL FORM FOR CITY:
Matthew T. Summers, City Attorney
ATTEST
Andrea Flores, City Clerk
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EXHIBITS
A LEGAL DESCRIPTION
B PARCEL MAP
C SITE AND FLOOR PLANS
D RESERVATION OR DEDICATION OF LAND FOR PUBLIC PURPOSES (IF APPLICABLE)
E OPERATIONAL AND ADDITIONAL BUSINESS STANDARDS (IF APPLICABLE)
F INDEMNIFICATION AGREEMENT
G STANDARDS AND CONDITIONS FOR CONSTRUCTION (IF APPLICABLE)
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EXHIBIT A
LEGAL DESCRIPTION
For APN: 0428-211-48-0000
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE INCORPORATED AREA OF BARSTOW, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL MAP 14462, PARCEL 23, BOOK 184, PAGE 100, SAN BERNARDINO COUNTY RECORDS.
APN: 0428-211-48-0000
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EXHIBIT B
PARCEL MAP
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EXHIBIT C
SITE AND FLOOR PLANS
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Packet Pg. 550 Attachment: Exhibits - Shryne Barstow LLC (4917 : Adoption of Shryne LLC DDA Ordinance) TEL/HP
SLOPE 2% SLOPE 2%SLOPE 2% SLOPE 2%
ADA PATH OF TRAVEL
ADA PATH OF TRAVEL
ROOF ACCESS LADDER ROOF ACCESS LADDER
SLOPE 2% SLOPE 0.5%
9'x19'
ENTRANCE / EXIT
9'x19'9'x19'9'x19'9'x19'
9'x19'
9'x19'
9'x19'
38 37
3534
6 25 26
EDISONUTILITY SETBACK LINE
ELECTRIC METER
& MAIN PANEL
BUS PARKING BUS PARKING
BUS PARKING BUS PARKING
STAFF
PARKING
FREEWAY SIGN
36 39
33323130292827
2 3 4 5 12
1 ENTRANCE / EXIT
BUS ENTRANCE ONLY
NET AREA 40,951.2 S.F.
R=900.00' L=79.88' D=6 3'-6"
50.68'
PATIO
AREA
TRASH
ENCLOSURE
78 9 10 11 13 14 15 16 17 18 19 20 21 22 23 24
30" H. SCREEN WALL
UNIT A-1=1,955 SQ.FT.
BLDG. (B)=3,560 SQ.FT.
FF:2422.10
PROPERTY LINE
116.46'
PROPERTY LINE 330.34'
PROPERTY LINE
HIGH POINT PARKWAY
0428-211-48
SIDEWALK 334.08'
HIGH POINT LOOP
SIDEWALK
MEN'S
WOMEN'S
OVERALL SITE PLAN 1
SITE KEYNOTES
SITE LEGEND
1 WALL MOUNTED TENANT SIGN
.. .12/01/2021 OVERALL SITE PLAN
A-01
.
--
SINGLE STORY BUILDING
SUITES A2 & A3 COMBINED
AREA = 2,960 S.F.
10927 Downey Ave., Suite D
Downey, CA 90241
Phone: 562.861.3883
OSHIMA STUDIO, INC.
[email protected]
1 --
10927 Downey Ave., Suite D
Downey, CA 90241
Phone: 562.861.3883
OSHIMA STUDIO, INC.
CONSULTANTS REVISIONS DATE SHEET TITLE
JOB NO. FILE NUMBER
OWNER
[email protected]
SHRYNE BARSTOW LLC
CONDITIONAL USE PERMIT
2560 HIGH POINT PARKWAY
BARSTOW, CA 92311
N S
W
E
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Attachment: Exhibits - Shryne Barstow LLC (4917 : Adoption of Shryne LLC DDA Ordinance) A.T.M.
A.T.M.
INFILL PAIRDOORSFILM ON INSIDE
OF GLASS
REF.
SINK
A.T.M.
REFREF
SLOPE 2%
PATIO
AREA
1,955 SQ.FT.
SLOPE 2%
SLOPE 2% SLOPE 2%
SLOPE 0.5% SLOPE 2%
EXIT
EGRESS/INGRESS
EXIT
EGRESS/INGRESS
EXIT
ADJACENT SUITE
(N.I.C.)
3,560 SQ.FT.
BLDG. - B
(N.I.C.)
PROPOSED FLOOR PLAN 1
FLOOR PLAN LEGEND
SINGLE STORY BUILDING
2560 HIGH POINT PARKWAY,
STE. A2 & A3 COMBINED
TENANT SPACE ±2,960 S.F.
--
EXIT
-
A-2.0
.. .12/01/2021 PROPOSED FLOOR PLAN
A-1.0
.
10927 Downey Ave., Suite D
Downey, CA 90241
Phone: 562.861.3883
OSHIMA STUDIO, INC.
[email protected]
1 --
10927 Downey Ave., Suite D
Downey, CA 90241
Phone: 562.861.3883
OSHIMA STUDIO, INC.
CONSULTANTS REVISIONS DATE SHEET TITLE
JOB NO. FILE NUMBER
OWNER
[email protected]
SHRYNE BARSTOW LLC
CONDITIONAL USE PERMIT
2560 HIGH POINT PARKWAY
BARSTOW, CA 92311
N S
W
E
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Attachment: Exhibits - Shryne Barstow LLC (4917 : Adoption of Shryne LLC DDA Ordinance)
EXHIBIT D
RESERVATION OR DEDICATION OF LAND FOR PUBLIC PURPOSES
(NOT APPLICABLE)
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EXHIBIT E
OPERATIONAL AND ADDITIONAL BUSINESS STANDARDS
(NOT APPLICABLE)
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EXHIBIT
F
INDEMNIFICATION AGREEMENT
24.c
Packet Pg. 555 Attachment: Exhibits - Shryne Barstow LLC (4917 : Adoption of Shryne LLC DDA Ordinance)
INDEMNIFICATION AGREEMENT
SHRYNE BARSTOW LLC
Shryne Barstow LLC will execute the City-provided Indemnification Agreement when it becomes available at a later date.
24.c
Packet Pg. 556 Attachment: Exhibits - Shryne Barstow LLC (4917 : Adoption of Shryne LLC DDA Ordinance)
EXHIBIT G
STANDARDS AND CONDITIONS FOR CONSTRUCTION
(NOT APPLICABLE)
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Packet Pg. 557 Attachment: Exhibits - Shryne Barstow LLC (4917 : Adoption of Shryne LLC DDA Ordinance) Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
City Manager Department
Willie A Hopkins
Resolution
Doc ID: 4919
AGENDA ITEM
AGENDA MATTER:
CONSIDERATION OF RESOLUTION NO. ____-2022 ESTABLISHING A RESERVE POLICY TO DESIGNATE 50% OF CANNABIS DEVELOPMENT AGREEMENT OPERATING FEE REVENUES FOR PUBLIC SAFETY.
EXECUTIVE SUMMARY:
Staff recommends the City Council adopt Resolution No. ____-2022, establishing a reserve policy to designate fifty percent (50%) of cannabis development agreement operating fee revenues to be used for public safety services costs, including police and fire services costs.
DISCUSSION:
On November 8, 2016, the Control, Regulate, & Tax Adult Use of Marijuana Act (“AUMA”) was approved by California voters via Proposition 64. The AUMA permits local jurisdictions to regulate and/or ban adult use cannabis cultivation, distribution and delivery, transportation, manufacturing, testing laboratories, dispensaries, and microbusiness facilities.
In June 2021, the City Council passed Ordinance No. 974-2021 which added Chapter 19.27 to the Barstow Municipal Code to permit commercial cannabis activities in the City. The ordinance went into effect on July 7, 2021. On October 4, 2021, the City Council adopted Ordinance No. 977-2021, amending the City’s cannabis regulatory program ordinance. All cannabis businesses must enter into a development agreement with the City that will be subject to council approval through the adoption of an ordinance under Government Code Section 65865. The commercial cannabis development agreements require commercial cannabis facilities to pay several fees to the City, including permit application and renewal fees, annual regulatory monitoring fees, and operating fees, together with all taxes as owed under applicable law.
The opening of commercial cannabis businesses in the City is expected to increase strain on the City’s public safety services, given anticipated needs for additional policing and fire protection. The resolution under consideration by the City Council reserves fifty percent (50%) of the operating fee funds received by the City under development agreements with commercial cannabis businesses to offset the expected increased costs of providing policing and fire services in the City. The remaining half of these operating fee revenues from commercial cannabis businesses would be available for any general fund purposes, such as parks and recreation and other city services.
FISCAL IMPACT:
Fifty percent (50%) of cannabis development agreement operating fee revenues would be used for public safety services costs, including police and fire services costs.
RECOMMENDED ACTION:
Staff recommends the City Council approve Resolution No. ____-2022 and establish a reserve policy designating that 50% of funds received from cannabis development agreements entered into by the City are set aside for public safety services.
25 Packet Pg. 558
RESOLUTION NO. ____-2022
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BARSTOW ESTABLISHING A RESERVE POLICY TO DESIGNATE 50% OF
CANNABIS DEVELOPMENT AGREEMENT OPERATING FEE
REVENUES FOR PUBLIC SAFETY, INCLUDING POLICE AND FIRE
SERVICES COSTS
WHEREAS, it is prudent fiscal management for public agencies to reserve funds which can be used for particular purposes; and
WHEREAS, on October 4, 2021, the City Council adopted Ordinance 977-2021, which promulgated comprehensive regulations for commercial cannabis businesses; and
WHEREAS, Ordinance 977-2021 requires applicants to enter into a development agreement with the City of Barstow before operating a commercial cannabis business in the City; and
WHEREAS, the opening of commercial cannabis businesses in the City is expected to increase strain on the City’s public safety services, given anticipated added policing and fire protection services needs; and
WHEREAS, the City of Barstow desires to designate a portion of the operating fees revenue received under development agreements entered into with commercial cannabis businesses to cover the increased costs of providing policing and fire services in the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BARSTOW CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The Barstow City Council designates 50% of the revenue received from operating fees under commercial cannabis facility development agreements to be used for public safety services, including costs for the Barstow Police Department and the Barstow Fire Protection District. The City Manager and Finance Department shall maintain records of all commercial cannabis development agreement revenues and their uses.
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Packet Pg. 559 Attachment: Resolution Reserving Cannabis DA Funds for Public Safety 02 07 22 (4919 : Public Safety Reserve Policy for Cannabis DA's) PASSED, APPROVED AND ADOPTED THIS 7
th DAY OF FEBRUARY, 2022.
_______________________________
Paul Anthony Courtney, Dr.B.A, Mayor
Approved as to Legal Form:
_________________________________
Matthew T. Summers, City Attorney
Attest:
_________________________________
Andrea Flores, City Clerk
I, Andrea Flores, City Clerk of the City of Barstow and ex-officio Clerk of the Council, DO HEREBY CERTIFY UNDER PENALTY OF PERJURY that the foregoing is a true and correct copy of Resolution No. XXXX-2022 of said Council which was adopted at its regular meeting of February 7, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
_________________________________
Andrea Flores, City Clerk
25.a
Packet Pg. 560 Attachment: Resolution Reserving Cannabis DA Funds for Public Safety 02 07 22 (4919 : Public Safety Reserve Policy for Cannabis DA's) Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Waste Water Plant
Kody Tompkins
Resolution
Doc ID: 4929
AGENDA ITEM
AGENDA MATTER:
CANNABIS EQUITY GRANT
EXECUTIVE SUMMARY:
On December 8, 2021, the City applied for the Cannabis Equity Grants Program for Local Jurisdictions through the Governor’s Office of Business and Economic Development (GO-Biz). Only eligible local jurisdictions (cities and counties) may apply for this grant. The purpose of the Cannabis Equity Grant Program is to assist populations and communities impacted by cannabis prohibition by providing support to local jurisdictions as they promote equity in California and eliminate barriers to enter the newly regulated cannabis industry. A Cannabis Equity Assessment is required to access any of these funds and the City of Barstow would need assistance to perform the Cannabis Equity Assessment.
An application for $75,000 was submitted and on January 30, 2022, GO-Biz notified the City that they would like to make an award in this amount for the successful completion of a Cannabis Equity Assessment. Funding will help pay for a third party consultant to conduct the Cannabis Equity Assessment.
DISCUSSION:
Staff is asking for the City Council to approve the acceptance of a grant award from GO-Biz in the amount of $75,000 to perform a Cannabis Equity Assessment. This Assessment is required to apply for future funding from the state to implement the City’s contemplated cannabis equity program. Once complete, City staff will return to Council for a request to approve the proposed cannabis equity program and admit the completed Assessment into City records. With this task accomplished, the City will be eligible to apply for up to $7,500,000 to pay for the implementation and administration of the cannabis equity program.
The Assessment will help inform the City on how to establish its equity program, how to best establish eligibility guidelines, and educate City staff on the unique needs of the immediate area as they pertain to cannabis equity and inclusion.
FISCAL IMPACT:
The Grant does not require a local match, therefore the only fiscal impact on the general fund is positive.
The entire $75,000 grant will be utilized to fund the contracted services for a Cannabis Equity Assessment and for associated staff time, who will provide support services to the contractor completing the Assessment.
RECOMMENDED ACTION:
Staff is recommending the City Council adopt Resolution No. ____-2021 authorizing State of California Cannabis Equity Act Grant funding.
26 Packet Pg. 561
RESOLUTION NO. ____-2022
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BARSTOW AUTHORIZING CALIFORNIA CANNABIS EQUITY ACT
GRANT FUNDING
The City Council of the City of Barstow finds:
WHEREAS, the members of the California Legislature have recognized the need for cannabis equity grant funding; and
WHEREAS, funding has been provided to the Governor’s Office of Business and Economic Development to provide grant funds to local governments to help them establish cannabis equity programs; and
WHEREAS, cannabis equity programs are intended to assist populations and communities impacted by cannabis prohibition by providing them support and eliminating barriers to enter the newly regulated cannabis industry; and WHEREAS, in June 2021, the City Council passed Ordinance No. 974-2021 which permitted commercial cannabis businesses in the City; and WHEREAS, in October 2021, the City Council adopted Ordinance 977-2021, which promulgated comprehensive regulations for commercial cannabis businesses; and
WHEREAS, the City Council of the City of Barstow supports the development of a local cannabis equity program; and
WHEREAS, the City has applied for and been approved for a grant of $75,000 from the Governor’s Office of Business and Economic Development; and WHEREAS, the City Council of the City of Barstow has determined that it will use grant funds from the Governor’s Office of Business and Economic Development to conduct a cannabis equity assessment and/or assist the development of a local equity program.
NOW THEREFORE, the City Council of the City of Barstow hereby resolves as follows:
1. The City Manager of the City of Barstow is authorized to execute by electronic signature on behalf of City Council the grant agreement with the Governor’s Office of Business and Economic Development, including any extensions or amendments thereof and any subsequent grant agreement with the Governor’s Office of Business and Economic Development in relation thereto.
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Packet Pg. 562 Attachment: 02-07-2022 Cannabis Equity Reso (4929 : Cannabis Equity Grant)
2. IT IS AGREED that any liability arising out of the performance of this grant agreement, including civil court actions for damages, shall be the responsibility of the grant recipient and the authorizing agency.
The Governor’s Office of Business and Economic Development and the State of California disclaim responsibility for any such liability.
PASSED, APPROVED AND ADOPTED THIS 7th DAY OF FEBRUARY, 2022.
_______________________________
Paul Anthony Courtney, Dr.B.A, Mayor
Attest:
_________________________________
Andrea Flores, City Clerk
I, Andrea Flores, City Clerk of the City of Barstow and ex-officio Clerk of the Council, DO HEREBY CERTIFY UNDER PENALTY OF PERJURY that the foregoing is a true and correct copy of Resolution No. XXXX-2022 of said Council which was adopted at its regular meeting of February 7, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
_________________________________
Andrea Flores, City Clerk
26.a
Packet Pg. 563 Attachment: 02-07-2022 Cannabis Equity Reso (4929 : Cannabis Equity Grant) Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
City Manager Department
Willie A Hopkins
Contract
Doc ID: 4935
AGENDA ITEM
AGENDA MATTER:
APPROVAL OF POLICE CHIEF EMPLOYMENT AGREEMENT WITH ANDREW ESPINOZA, JR.
EXECUTIVE SUMMARY:
A Police Chief Employment Agreement with Andrew Espinoza, Jr. is presented for City Council ratification.
DISCUSSION:
Mr. Espinoza has served as the City's Interim Police Chief since October 25, 2021. Chief Andrew Espinoza Jr. began his law enforcement career in 1999 with the Barstow Police Department. He attended the San Bernardino County Sheriff’s Department 135th Academy Session and upon graduation worked as a patrol officer.
During his career, Chief Espinoza has worked a variety of assignments in the department including; Patrol Officer, Crime Impact Detective, Major Crimes Detective, Watch Commander, Range Master, Special Response Team (SRT) Operator, Special Response Team Commander, Patrol Division Commander, and Administrative Division Commander.
Chief Espinoza has an Associate’s Degree in Social Science from Barstow Community College, a Bachelor’s Degree in Criminal Justice from Chapman University, and a Master’s Degree in Public Administration from California State University, Long Beach.
Chief Espinoza is also a recipient of Barstow Police Department’s Life Saving Medal, granted for extraordinary action to save the life of another.
The proposed employment agreement includes a monthly base salary of $15,640.74 ($187,688.88 annually) and provides a benefit package commensurate with other executive management employees.
FISCAL IMPACT:
The City’s current budget contains sufficient payroll appropriations to cover the proposed salary.
RECOMMENDED ACTION:
Approve the employment agreement between the City and Andrew Espinoza, Jr. to serve in the position of Police Chief as appointed by the City Manager.
27 Packet Pg. 564
- 1 -
274471.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the 7th day of February, 2022, by and between the CITY OF BARSTOW, California, a Municipal Corporation, hereinafter called the “City” or “Employer,” and Andrew Espinoza, Jr. hereinafter called “Employee.”
RECITALS
A. City desires to retain the services of Employee in the position of Police Chief, and Employee desires employment as Barstow Police Chief.
B. The City Council further desires to:
(1) Retain the services of Employee as Police Chief.
(2) Encourage the highest standards of fidelity and public service on the part of Employee.
(3) Provide a just means for terminating Employee’s employment and this Agreement when City may desire to do so.
C. The parties further desire to establish the Employee’s conditions of employment.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained the parties agree as follows:
1. Duties. \The City Manager of the City of Barstow, after consulting with the City Council per Barstow Municipal Code section 2.08.070(3), hereby appoints Employee as Barstow Police Chief, effective February 7, 2022, to perform the functions and duties of the Police Chief as specified in the City’s Municipal Code and applicable state law and to perform such other legally permissible and proper duties and functions as the City Manager may from time to time assign to Employee. Employee agrees to perform faithfully, industriously, and to the best of Employee’s ability, experience, and talents, all of the duties and functions required and expected of Employee, to the reasonable satisfaction of the City Manager.
2. Hours of Work. Employee is an exempt employee under the Fair Labor Standards Act and shall maintain a regular work schedule as set by the City Manager.
Employee’s duties may involve expenditures of time in excess of forty (40) hours per week and may also include time outside normal office hours such as attendance at City Council meetings or as needed to respond to emergencies. Employee shall be exempt from paid overtime compensation and shall not be entitled to additional compensation for such time. To ensure responsiveness in the event of an emergency, Employee agrees to reside within sixty minutes’ response time to City Hall.
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Packet Pg. 565 Attachment: Final Espinoza Police Chief Employment Agreement (4935 : Approval of Police Chief Employment Agreement Andrew Espinoza - 2 -
274471.3
3. Term. The term of this Agreement is for four (4) years. This Agreement shall terminate on February 7, 2026, unless extended or amended by the parties or terminated earlier by the City Manager under Section 15.
4. Exclusivity. Employee agrees to remain in the exclusive employment of the Employer during the term of this Agreement. Employee agrees to devote Employee’s full time and effort to the performance of this Agreement and to remain in the exclusive employ of City and not to become otherwise employed nor engage in any consulting or outside business activities while this Agreement is in effect without the prior written approval of the City Manager. For purposes of this Agreement, outside business activities means any outside employment or any outside commercial activity which interferes with or poses a conflict with Employee’s position as Police Chief, unless otherwise required under state or federal law.
5. Extension of Agreement. At least 90 days prior to the expiration of the term, Employee may submit a written proposal to Employer for the extension of the provisions of this Agreement and in that event, the parties shall enter into good faith negotiations with respect to such proposal. Prior to this time, Employer shall exercise its best efforts to advise Employee whether or not this Agreement shall be extended or revised either as result of such negotiations, or, if no proposal is submitted by Employee, on such terms as Employer may determine to be appropriate. Nothing contained herein shall be construed to (1) require the Employer to extend the term of revise this Agreement, or (2) require an automatic renewal of this agreement.
6. Salary. Under this Employment Agreement City shall pay Employee for the performance of Employee’s duties as Police Chief a monthly base salary of $15,640.74 ($187,688.88 annually) plus an additional 3% a month education pay (Employee possesses a Master’s Degree) payable in installments at the same time as other management employees of the Employer are paid, less customary and legally required payroll deductions. Employee shall receive salary cost of living increases thereafter, to the extent granted to other management employees of the City pursuant to Unit 8 MOU, or any successor MOU with the Barstow Police Management Association. This salary constitutes Employee's "base wage rate." (A) Employee shall also be eligible to benefit from any step increases or performance bonus or incentives, as applicable under the Unit 6 MOU, or any successor MOU with the Barstow Management Employees Association. In all circumstances, the award of an increase shall be a discretionary act of the City Manager. Employee shall also be eligible to receive the POST/Educational Incentive as set forth in the Unit 8 MOU, or any successor MOU with the Barstow Police Department Management Association. In addition to the above referenced educational incentive pay, the City will also compensate the Employee an additional
2.5% above his base wage rate if the Employee obtains the POST Executive Management Certificate after serving two years as Chief of Police. (B) The City does not participate in the Social Security system; accordingly, Employee shall be exempt from Social Security taxes other than the mandatory Medicare portion of such taxes.
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Packet Pg. 566 Attachment: Final Espinoza Police Chief Employment Agreement (4935 : Approval of Police Chief Employment Agreement Andrew Espinoza - 3 -
274471.3
8. Retirement and Deferred Compensation.
(A) City participates in the California Public Employees Retirement System (CalPERS) and will provide the Employee with the 3% at 50 public safety retirement plan.
Furthermore, with regard to handling the retirement program for Employee, the City shall abide by the retirement program provisions as outlined in the Unit 8 MOU, or any successor MOU with the Barstow Police Department Management Association as may be amended from time to time. (B) Upon completion of 10 years of employment with the City (whether or not the years of employment were in consecutive order), if Employee retires from the City through CalPERS, he will be eligible to participate in the City-funded retirement health insurance program, to the extent the same is offered to other management employees as set forth in the Unit 6 MOU, or any successor MOU with the Barstow Management Employees’ Association. (C) City shall provide deferred compensation for Employee to the same extent as offered to other management employees pursuant to the Unit 6 MOU, or any successor MOU with the Barstow Management Employees’ Association.
9. Medical, Dental and Vision Insurance. Employee shall be provided medical, dental, and vision insurance benefits on the same terms and conditions as afforded other City management employees in Unit 6. Subject to the limit applicable to other members of the management group (Unit 6), City shall pay the monthly premiums for medical, dental and vision insurance for Employee and Employee’s dependents in an amount sufficient to cover most plans offered by the City and not less than the amount afforded other City management employees in Unit 6.
10. Other Benefits. City shall provide to Employee any other benefits mandated by state or federal law. City shall provide term life insurance in the same amount and through the same insurance company providing life insurance to other management employees pursuant to the Unit 6 MOU. Employee shall also receive short and long-term disability insurance coverage to the same extent that such coverage is afforded management employees, as set forth in the Unit 6 MOU, or any successor MOU with the Barstow Management Employees’ Association. The City will pay the premium for Employee and Employee’s dependents to participate in the City’s Employee Assistance Program.
11. General Expenses and Business Equipment. City recognizes that certain expenses of a non-personal and job-related nature may be incurred by Employee. City agrees to reimburse Employee for reasonable expenses which are authorized by the City budget, submitted to the City Council for approval, and which are supported by expense receipts, statements or personal affidavits, and audit thereof in like manner as other demands against the City. Any purchases of supplies or other tangible items must be delivered to City Hall or other City facilities to be eligible for reimbursement. City shall bear the full cost of any fidelity or other bonds as may be required of Employee under any law, policy of ordinance.
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274471.3
12. Official and Professional Development Expenses. City shall pay reasonable sums, as approved by the City Manager, for expenses necessary for Employee’s continued professional growth and advancement and for professional dues and subscriptions for Employee necessary for Employee’s continued participation in associations and organizations, which memberships are necessary and desirable for the continued professional development of Employee and for the good of the City, such as the League of California Cities.
13. Performance Evaluation. The City Manager shall review and evaluate the performance of Employee by August 31, 2022, and annually thereafter. This evaluation shall be in accordance with specific criteria developed by the City Manager in consultation with Employee, which criteria may be altered as the City Manager may determine after consultation with Employee. Further, the result of each evaluation shall be memorialized in writing and provided to Employee. It shall be Employee’s responsibility to initiate this performance evaluation each year. The City Manager may annually define, in consultation with Employee, such written and prioritized goals and objectives as the City Manager determines necessary for the proper operation of the City of Barstow and the attainment of the City Council’s policy objectives. These goals and objectives shall be reasonably attainable within the time and appropriations provided.
14. Indemnification. City shall defend, hold harmless and indemnify Employee against any claim, demand, judgment, or action of any type or kind arising within the course and scope of Employee’s employment to the extent required by Government Code Sections 825 and 995.
15. Other Terms and Conditions of Employment.
(A) The provisions of the City’s Personnel Rules and Regulations (“Rules”) shall apply to Employee to the extent that they apply to Department Heads, except that if the specific provisions of this Agreement conflict with the Rules, the terms of this Agreement shall prevail. Without limiting the generality of the exception noted in the previous sentence, however, no provision of the Rules or this Agreement shall confer upon Employee a property right in his employment or a right to be discharged only upon cause. Employee is an at-will employee serving at the pleasure of the City Manager and may be dismissed at any time with or without cause, subject only to the provisions of this Agreement and the Public Safety Officers Procedural Bill of Rights Act. Employee shall not engage in any outside employment nor engage in any outside business activities without having obtained the prior written approval of City Council.
(B) The provisions of the City’s Personnel Rules and Regulations (“Rules”) shall apply to Employee, except that if the specific provisions of this Agreement conflict with the Rules, the terms of this Agreement shall prevail. Except as otherwise expressly provided for by this Agreement, regulations and contractual agreements adopted by the City relating to vacation, sick leave, holidays, CalPERS contributions, health coverage, and other fringe benefits as they now apply to other management employees of the City pursuant to the Memorandum of Understanding for Unit 6, or any successor MOU with the Barstow Management Employees’
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Packet Pg. 568 Attachment: Final Espinoza Police Chief Employment Agreement (4935 : Approval of Police Chief Employment Agreement Andrew Espinoza - 5 -
274471.3
Association, shall apply to Employee. Without limiting the generality of the exception noted in the previous sentence, however, no provision of the Rules or this Agreement shall confer upon Employee a property right in Employee’s employment or a right to be discharged only upon cause during Employee’s tenure as City Administrator. At such times as Employee is serving as Police Chief, Employee is an at-will employee serving at the pleasure of the City Manager and may be dismissed at any time with or without cause, subject only to the provisions of this Agreement, the Barstow Municipal Code, and applicable law. (C) Except as otherwise provided in this Agreement, Employee's accrual of vacation shall be the same as that for other management employees, as set forth in the schedule within the Unit 6 MOU. Employee must provide sufficient notice of his intended vacation absence so that the City Manager may approve such absence in order to avoid an extended absence of Employee during critical time periods. Upon retirement or other end of employment, Employee shall be entitled to compensation for 100% of accumulated and unused vacation leave at Employee’s then-current salary, not to exceed the maximum accrual amount set forth above. (D) All other personal leave, management leave, holiday leave, family leave, bereavement leave, sick leave, jury leave, military leave, or other leave time shall be as provided to other management employees of the City, as set forth in the Unit 6 MOU, or any successor MOU with the Barstow Management Employees’ Association.
16. General Provisions.
(A) The parties agree to fully comply with Government Code sections that are part of Assembly Bill 1344, Statutes 2011, Chapter 692, and other applicable law as it relates to reimbursement by an employee upon conviction of a qualifying crime or abuse of office as defined, including the following:
(1) Gov’t Code sec. 53243. Reimbursement of paid leave salary required upon conviction of crime involving the office or position. (2) Gov’t Code sec. 53243.1. Reimbursement of legal criminal defense upon conviction of a qualifying crime involving the office or position.
(3) Gov’t Code sec. 53243.2. Reimbursement of cash settlement upon conviction of a qualifying crime involving the office or position. (4) Gov’t Code sec. 53243.3. Reimbursement of non-contractual payments upon conviction of a qualifying crime involving the office or position.
(5) Gov’t Code sec. 53243.4 Abuse of office or position defined. (B) This Agreement constitutes the entire agreement between the parties. City and Employee hereby acknowledge that they have neither made nor accepted any other promise or obligation with respect to the subject matter of this Agreement. This Agreement may be amended only by a writing signed by Employee, approved by the City Council, and executed on behalf of the City.
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274471.3
(C) If any provision or any portion of this Agreement is held to be unconstitutional, invalid, or unenforceable, the remainder of the Agreement shall be deemed severable and shall not be affected and shall remain in full force and effect. (D) Termination. Employee recognizes and acknowledges that Employee is an at-will employee and serves as Police Chief for the City of Barstow at the pleasure of the City Manager. Nothing in this agreement shall limit the right of the City Manager, in consultation with the City Council per Barstow Municipal Code section 2.08.070(3), to terminate the services of Employee at any time, with or without cause, with or without notice and without a hearing of any sort, subject to Employee’s rights under the Public Safety Officers Procedural Bills of Rights and the requirements of paragraph 15 below regarding severance. Notice of termination to City shall be given in writing to City, either by personal service or by registered or certified mail, postage prepaid, addressed to City as follows:
City Manager
City of Barstow
220 E. Mountain View Street, Suite A
Barstow, CA 92311.
With a courtesy copy to:
Matthew T. Summers
City Attorney, City of Barstow
Colantuono Highsmith & Whatley,
790 E. Colorado Blvd. Suite 850
Pasadena, CA 91101-2109.
Any notice to Employee shall be given in a like manner, and, if mailed, shall be addressed to Employee at the address then shown in City’s personnel records. For the purpose of determining compliance with any time limit stated in this Agreement, a notice shall be deemed to have duly given (a) on the date of delivery, if served personally on the party to whom notice is to be given, or (b) on the second (2nd) calendar day after mailing, if mailed in the manner provided in this section to the party to whom notice is to be given. Notwithstanding the forgoing, this Agreement shall automatically terminate on the death or permanent disability of Employee and Employee agrees to make best efforts to give City not less than 60 days’ written notice of resignation or retirement. Upon termination, Employee shall return any City-issued property, including any electronic devices, computers, or telephones, and shall further make any privately owned electronic devices, computers, or telephones used by Employee for City business available to the City’s Communications Department to confirm the erasure of any City information or data. (E) A waiver of any of the terms and conditions of this Agreement shall not be construed as a general waiver by the City and the City shall be free to enforce any term or condition of this Agreement with or without notice to Employee notwithstanding any prior waiver of that term or condition.
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274471.3
15. Severance. If City terminates Employee without cause, as defined in this paragraph, or asks the Employee to resign, then City shall pay Employee severance as specified in this paragraph. If Employee’s employment is terminated within the first 90 days, Employee will receive two months’ severance pay. If Employee’s employment is terminated after the expiration of the first 90 days of employment, Employee will receive six (6) months severance pay, or such lesser amount as required by Government Code Section 53260. The City shall have cause to terminate Employee without payment of severance under this paragraph 15 if the City Manager finds that Employee engaged in any of the following conduct:
(a) Conviction of a felony or conviction of a misdemeanor involving moral turpitude or adversely reflecting on Employee’s fitness to perform assigned duties (a conviction following a plea of guilty or nolo contendere shall be deemed a conviction for purposes of this Agreement); (b) Intoxication on duty due to alcohol, cannabis, or a controlled substance, or continued abuse of “controlled substances,” as that term is defined in the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 as amended to date that materially affects the performance of the City Administrator 's duties;
(c) Inexcusable absence without leave;
(d) Habitual and willful neglect of duty;
(e) Documented and confirmed violation of local, state, and federal laws which prohibit discrimination including, but not limited to, discrimination based on race, religion, national origin, ancestry, physical handicap, marital status, sex, sexual orientation, age, gender identity, gender expression, or any other category protected by local, state or federal law, involving either members of the general public or City employees; (g) Retaliation against any other City officer or employee or member of the public who in good faith reports, discloses, divulges, or otherwise brings to the attention of any appropriate authority any facts or information relative to actual or suspected violations of any law occurring on the job directly related thereto;
(h) Verifiable actions or behaviors that create a hostile work environment or demonstrate any form of harassment prohibited by local, state, or federal law;
(i) Willful violation of any local, state, or federal conflict of interest or incompatibility of office laws;
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(j) Engaging in any outside business activities without the prior written approval of the City Council;
(k) Failure to comply with lawful directives of the City Council or City Manager;
(l) Theft, destruction, or unauthorized use of City property, City funds, or City equipment, including City staff time;
(m) Refusal to take or subscribe any oath or affirmation which is required by law;
(n) Acceptance by Employee of any valuable consideration from any person or entity other than the City for the regular performance of Employee’s duties; and
(o) Any violation of the Rules, to the extent they explicitly apply to the position of Police Chief, except that if the specific provisions of this Agreement conflict with the Rules, the terms of this Agreement shall prevail.
IN WITNESS WHEREOF, the City of Barstow has caused this Agreement to be signed on its behalf, and duly attested, and Andrew Espinoza Jr. signed this Agreement as of the day and year first above written.
EMPLOYEE
______________________________
Andrew Espinoza, Jr.
ATTEST: CITY OF BARSTOW
_________________________ ______________________________ Andrea Flores Willie Hopkins, Jr.,
CITY CLERK City Manager
Approved as to form:
_________________________
Matthew T. Summers, City Attorney
Colantuono Highsmith & Whatley
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Packet Pg. 572 Attachment: Final Espinoza Police Chief Employment Agreement (4935 : Approval of Police Chief Employment Agreement Andrew Espinoza Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
Parks and Recreation
Kyle Woolley
Report
Doc ID: 4912
AGENDA ITEM
AGENDA MATTER:
ALLOCATION OF FUNDS FOR THE 4TH OF JULY FIREWORKS SPECTACULAR EVENT EXECUTIVE SUMMARY:
Staff is requesting Council's direction for the 4th of July event. The direction requested is to determine between two different programs for the 4th of July event. The programs proposed are having the 4th of July event with the Sports Park open or having fireworks only due to the COVID-19 pandemic.
DISCUSSION:
For the past two years, the 4th of July Fireworks Spectacular event has been a shortened fireworks show only due to COVID-19. Two types of fireworks programs are presented for the Council’s review. Program A and Program B vary in cost, duration, number of fireworks, and type of fireworks used. Program A is similar to the types of fireworks used in 2019 and prior, while Program B is similar to the types of fireworks used in 2020 and 2021 as a result of the pandemic.
The Program A fireworks display duration is approximately 20 minutes, costs $44,000 and includes 299 grand finale fireworks and a total of 872 fireworks throughout the entire show.
The Program B fireworks display duration is approximately 16 minutes, costs $23,000 and includes 202 grand finale fireworks and a total of 606 fireworks throughout the entire show.
The Council is asked to provide direction to staff on the type of fireworks display to select for the 2022 4th of July Fireworks Spectacular event.
FISCAL IMPACT:
None.
RECOMMENDED ACTION:
Provide direction to staff by approving Program A or Program B for the 2022 4th of July Fireworks Spectacular display and authorize the City Manager to execute the agreement. 28 Packet Pg. 573
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Packet Pg. 574 Attachment: Barstow_Fireworks_Proposal_7-4-22 (4912 : Allocation for the 4Th of July Fireworks Spectacular Event)
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Packet Pg. 586 Attachment: Barstow_Fireworks_Proposal_7-4-22 (4912 : Allocation for the 4Th of July Fireworks Spectacular Event)
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Packet Pg. 587 Attachment: Barstow_Fireworks_Proposal_7-4-22 (4912 : Allocation for the 4Th of July Fireworks Spectacular Event) Joint Special Meeting CC/BFPD/Odesa/Harvey House
02/7/22 06:00 PM
City Manager Department
Willie A Hopkins
Other
Doc ID: 4896
AGENDA ITEM
AGENDA MATTER:
RECONSIDERATION OF ACCOUNTS PAYABLE EXPENDITURES FOR CHECKS #1005 AND #85773 EXECUTIVE SUMMARY:
At the December 6, 2021 Council Meeting, Council Members Rose and Silva requested that accounts payable expenditures for checks #1005 and #85773 be reconsidered for approval and ratification.
DISCUSSION:
At the December 6, 2021 Council Meeting, Council Members Rose and Silva requested that accounts payable expenditures for checks #1005 and #85773 be reconsidered for approval and ratification.
Below and attached are the details and back-up documentation for checks #1005 and #85773.
Additionally, Mayor Pro Tem Noble and Council Member Rose requested that the Rules and Policies Committee review a revision to the expense reimbursement policy requiring up front approval of elected officials’ travel. This proposed, potential policy change is pending review by the Rules and Policies Committee and action as may be desired from there.
FISCAL IMPACT:
Expenses conform to City purchasing policies and the budget approved by resolution of the Council.
Accordingly, sufficient funds have been budgeted for these checks.
RECOMMENDED ACTION:
Approve and ratify expenses, as audited, for checks #1005 and #85773 totaling $1,174.58. 29 Packet Pg. 588
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Attachment: check 1005 (4896 : Reconsideration of Accounts Payable Expenditures)
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