Calimesa City Council
September 19, 2022

Regular Meeting of the Calimesa City Council &
Successor Agency to the Calimesa Redevelopment Agency
Monday, September 19, 2022

CALL TO ORDER
ROLL CALL: MAYOR DAVIS, MAYOR PRO TEM CERVANTEZ, COUNCIL MEMBER DUVALL, COUNCIL MEMBER HEWITT AND COUNCIL MEMBER MOLINA.

STAFF: CITY MANAGER JOHNSON, CITY ATTORNEY BARROW, CITY CLERK GERDES,

FINANCE DIRECTOR REID, PLANNING DIRECTOR LUCIA, PUBLIC WORKS DIRECTOR MONSON, CITY ENGINEER THORNTON, FIRE CHIEF O’CONNELL AND SHERIFF CAPTAIN SALAS.

PLEDGE OF ALLEGIANCE

COMMUNICATIONS FROM THE PUBLIC
Anyone wishing to address the Council on any item within the Council’s jurisdiction that is not on the agenda may do so at this time. This is not a time for City Council discussion of non-agenda items. After receiving public comments, Council Members, or staff, after being recognized by the Mayor, may briefly respond to statements made by the public or questions posed by the public. In addition, Council Members may ask questions for clarification or make a referral to staff for factual information to be reported back to the Council at a later meeting.

Regular Meeting of the Calimesa City Council & Successor Agency to the Calimesa Redevelopment Agency
Meeting Agenda
Monday, September 19, 2022 – 6:00 p.m.

Norton Younglove Multipurpose Senior Center
908 Park Avenue, Calimesa, CA 92320
William Davis, Mayor  Jeff Cervantez, Mayor Pro Tem
Wynona Duvall, Council Member  Wendy Hewitt, Council Member  Linda Molina, Council Member Bonnie Johnson, City Manager  Quinn Barrow, City Attorney The Calimesa City Council will be conducting this meeting in the Norton Younglove Senior Center. Members of the public may participate in this meeting in one of two ways:
1) In person at the Norton Younglove Senior Center, 908 Park Avenue, Calimesa, CA 92320. 2) By viewing the meeting on Facebook Live, beginning at 6:00 p.m. at https://www.facebook.com/cityof.calimesa Submission of Public Comments: If attending the meeting, public comment will be allowed by completing a blue speaker slip and providing it to the City Clerk at the meeting. Please observe a time limit of three (3) minutes when giving your presentation. When called upon, please step forward to the microphone, state your name for the record, whom you represent and any statement you wish to make. Please be advised that you may not defer your three (3) minutes to another speaker. Otherwise, public comment will be accepted via email. Please send comments via email to the Calimesa City Clerk at [email protected]. Identify public comment or the specific agenda item you wish to comment on in your email’s subject line. You may submit comments on any agenda item. Emailed comments must be submitted by 5:30 p.m. on Monday, September 19, 2022 and will be read into the record by the City Clerk. Electronic comments on agenda items may only be submitted via email and comments via text and social media (Facebook, Twitter, etc.) will not be accepted.

In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a City meeting or other services offered by this City, please contact the City Clerk’s Office, (909) 795-9801. Notification of at least 48 hours prior to the meeting or time when services are needed will assist the City staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting or service. Any public writings distributed by the City to at least a majority of the Council Members regarding any item on this regular meeting agenda will be made available at the public counter at City Hall located at 908 Park Avenue, Calimesa, CA 92320.

Regular Meeting of the Calimesa City Council &
Successor Agency to the Calimesa Redevelopment Agency
Monday, September 19, 2022

APPROVAL OF THE AGENDA
RECOMMENDATION: Move to approve the agenda
Motion________________________ Second_______________________ Vote___________________________ CONSENT CALENDAR (Items 1 – 9)
The following Consent Calendar items are expected to be routine and non-controversial. Council will act upon them at one time without discussion. Any Council Member or staff member may request removal of an item from the Consent Calendar for discussion.

1. APPROVAL OF CITY COUNCIL ACTION MINUTES.
a) City Council action minutes of a regular meeting of September 6, 2022.

2. RECEIVE AND FILE CITY COMMISSION & BOARD MINUTES.
a) Library Commission action minutes of a special meeting of June 14, 2022 b) Parks, Trails & Comm. Services Comm. action minutes of a regular meeting of May 4, 2022

3. APPROVAL OF WARRANT REGISTERS.
a) Check Register Report with a total of $285,657.51 (Check Nos. 39159 to 39245) September 15, 2022 Payroll of $90,215.19

4. WAIVE FULL READING OF ANY PROPOSED ORDINANCES ON THE AGENDA.

This permits reading the title only in lieu of reciting the entire text of the Ordinances. This does not take policy action on the Ordinances or approve or disapprove any Ordinances on the agenda.

5. TRAVEL EXPENSES
RECOMMENDATION: That the City Council move to approve the Council Travel Training and Meeting/Mileage Expenses Report through August 31, 2022.

6. SECOND READING OF ORDINANCE NO. 382 - BIRTCHER LOGISTICS CENTER AT OAK

VALLEY TOWN CENTER - A REQUEST BY SCOTT MULKAY ON BEHALF OF BIRTCHER

DEVELOPMENT MANAGEMENT, LLC FOR RECOMMENDED APPROVAL OF ENVIRONMENTAL ASSESSMENT 21-01 (EA 21-01), GENERAL PLAN AMENDMENT 21-01 (GPA 21-01), SPECIFIC PLAN AMENDMENT 21-01 (SPA 21-01), DEVELOPMENT PLAN REVIEW (“DPR”) 21-02 (“WEDGE” TRAILER STORAGE FACILITY ON TPM 37862 PARCELS 5 AND 6), DPR 21-03 AND CONDITIONAL USE PERMIT (“CUP”) 21-01 (BUILDING A – TPM 37862 PARCEL 4), DPR 21-04 AND CUP 21-02 (BUILDING B – TPM 37862 PARCEL 3), DPR 21-05 AND CUP 21-03 (BUILDING C – TPM 37862 PARCEL 2), DPR 21-06 AND CUP 21-04 (BUILDING D – TPM 37862 PARCEL 1), CONSIDERATION OF A FUNDING AND

REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF CALIMESA AND BIRTCHER

DEVELOPMENT, AND REVISIONS TO ADOPTED CONDITIONS OF APPROVAL FOR PREVIOUSLY APPROVED TENTATIVE PARCEL MAP 37862, ON A 115-ACRE PORTION OF THE SUMMERWIND RANCH SPECIFIC PLAN PROJECT.

RECOMMENDATION: That the City Council approve second reading by title only and adopt Ordinance No. 382 Specific Plan Amendment 21-01, adopting Specific Plan Amendment SP-1, Amendment 3 (Summerwind Ranch).

Regular Meeting of the Calimesa City Council &
Successor Agency to the Calimesa Redevelopment Agency
Monday, September 19, 2022

7. BIENNIAL NOTICES REGARDING REVIEW AND UPDATES OF THE CITY’S AND SUCCESSOR AGENCY’S CONFLICT OF INTEREST CODES.

RECOMMENDATION: That the City Council receive and rile the Biennial Notices regarding the updates to the City’s and Successor Agency’s Conflict of Interest Codes’ and designate the City Clerk to execute those Biennial Notices.

8. 4
TH STREET PARK EXPANSION – CONTRACT AWARD FOR PARK DESIGN SERVICES.

RECOMMENDATION: That the City Council award a contract to RHA Landscape ArchitectsPlanners, Inc., for Park Design Services for the 4th Street Park Expansion Project in the amount of $244,960.00.

9. BANK OF AMERICA CORPORATE CARD AGREEMENT FOR PURCHASE CARD PROGRAM,

CALIFORNIA PUBLIC SECTOR GROUP PROGRAM PARTICIPATION AND INCREASE OF MONTHLY CREDIT CARD LIMIT FROM $25,000 TO $50,000.

RECOMMENDATION: That the City Council approve the updated Bank of America Corporate Card Service Agreement, participation in the California Public Sector Group Credit Program, approve the increase of the City of Calimesa’s credit card limit from $25,000 to $50,000 and authorize the City Manager to sign all agreements and take all actions necessary for implementation of the agreements.

CHAMBER OF COMMERCE REPORTS

POLICE CHIEF COMMENTS & REPORTS

FIRE CHIEF COMMENTS & REPORTS

MAYOR & COUNCIL MEMBER REPORTING OF COUNTY & REGIONAL MEETINGS This is the time for comments, announcements and/or reports on meetings attended at public expense as required by AB 1234.

PUBLIC HEARINGS
The order of business for the Public Hearing shall be:

A. Open Public Hearing
B. Staff Presentation
C. Applicant/Representative Presentation
D. Public Testimony
E. Applicant Rebuttal (if necessary)
F. Public Testimony Closed
G. Close Public Hearing
H. Council Discussion
I. Council Motion and Vote
Speakers are encouraged to be brief and remain within the established time limit of three (3) minutes per speaker. Once the public hearing has been closed, no further testimony will be taken.

10. CONTINUED PUBLIC HEARING: CALIMESA MUNICIPAL CODE TABLE 18.25.030 TO

CONDITIONALLY ALLOW TELECOMMUNICATIONS FACILITIES IN THE NEIGHBORHOOD COMMERCIAL (“CN”) ZONE AND CALIMESA MUNICIPAL CODE TABLE 18.30.030 TO CONDITIONALLY ALLOW TELECOMMUNICATION FACILITIES IN LIGHT INDUSTRIAL (“LI”) AND BUSINESS PARK (“BP”) ZONES.

Regular Meeting of the Calimesa City Council &
Successor Agency to the Calimesa Redevelopment Agency
Monday, September 19, 2022

RECOMMENDATION: That the City Council open the continued public hearing and continue it to the City Council Meeting of October 3, 2022 to allow staff time to finalize the proposed ordinance.

BUSINESS ITEMS

11. RECOMMENDED PARK NAME FOR THE APPROXIMATELY 6-ACRE PARK LOCATED WITHIN PHASE 1 OF THE SUMMERWIND TRAILS DEVELOPMENT – APN 413-290-062; ON ENGELMAN DRIVE, NORTH OF PALMER AVENUE AND SOUTH OF CHESTNUT ROAD.

RECOMMENDATION: That the City Council:

1. Receive and file the proposed park name recommended by the Parks, Trails, and Community Services Commission.

2. Provide direction to Staff regarding the official naming of the 6-Acre park in the Summerwind Trails Development.

RECESS CITY COUNCIL AND CONVENE SUCCESSOR AGENCY TO THE CALIMESA

REDEVELOPMENT AGENCY MEETING

CALL TO ORDER
ROLL CALL: AGENCY CHAIR DAVIS, AGENCY VICE-CHAIR MOLINA, AGENCY MEMBER CERVANTEZ, AGENCY MEMBER DUVALL AND AGENCY MEMBER HEWITT.

CSA CONSENT ITEMS
CSA1. APPROVAL OF THE SUCCESSOR AGENCY TO THE CALIMESA REDEVELOPMENT AGENCY MEETING MINUTES.

RECOMMENDATION: That the Board of Directors approve the action minutes as presented for the September 6, 2022 Regular Meeting of the Board of Directors of the Successor Agency to the Calimesa Redevelopment Agency.

ADJOURN THE SUCCESSOR AGENCY TO THE CALIMESA REDEVELOPMENT AGENCY AND

RECONVENE CITY COUNCIL
COUNCIL MEMBERS’ COMMENTS & REPORTS
This is the time for additional general comments, announcements, reports on meetings attended at public expense as required by AB 1234, requests of staff, and other issues of concern to Council Members may be presented briefly at this time. The Council may not legally take action on any item presented at this time other than to direct staff to investigate a complaint or place an item on a future agenda unless (1) by a majority vote, the Council determines that an emergency situation exists, as defined by Government Code § 54956.5 or (2) by a four-fifths vote, the Council determines that there is a need for immediate action and the need for action arose subsequent to the agenda being posted as required by Government Code § 54954.2(b).

CITY MANAGER COMMENTS & REPORTS

CLOSED SESSION ITEMS
A. CONFERENCE WITH REAL PROPERTY NEGOTIATORS Government Code Section 54956.8:

Property: 625 W. County Line Road, Calimesa 92320
Agency negotiators: City Manager Bonnie Johnson and City Attorney Quinn Barrow Negotiating parties: Troyce Lee Gayle , Jr., Administrator of Estate of Troyce Lee Gayle and Edward B.

Fischel, LL.M, attorney for Administrator. Under negotiation: Price and Terms of Payment.

ADJOURNMENT
Adjourn to the Regular Meeting of the City Council on Monday, October 3, 2022 at 6:00 p.m.

City Council Meeting
Agenda Report
Agenda Item No. 1
SUBJECT: APPROVAL OF CITY COUNCIL MEETING MINUTES
MEETING DATE: September 6, 2022
PREPARED BY: Darlene Gerdes, Deputy City Manager/City Clerk RECOMMENDATION: That the City Council approve the action minutes as presented for the Regular City Council Meeting of September 6, 2022.

ATTACHMENTS:

Attachment A: City Council action minutes of September 6, 2022 regular meeting.

City Council Action Minutes of the Regular Meeting of
September 6, 2022

City Of Calimesa
City Council Minutes of Regular Meeting
September 6, 2022
Members of the public were encouraged to participate in this meeting in one of two ways:
1) In person at the Norton Younglove Senior Center, 908 Park Avenue, Calimesa, CA 92320. 2) By viewing the meeting on Facebook Live, beginning at 6:00 p.m. at https://www.facebook.com/cityofcalimesa
Submission of Public Comments: Those attending the meeting were allowed to speak during public comment by completing a blue speaker slip and providing it to the City Clerk at the meeting.

Otherwise, public comment was accepted via email to the Calimesa City Clerk at [email protected] with a deadline of 5:30 p.m. on Tuesday, September 6, 2022.

CALL TO ORDER 6:00 p.m. by Mayor Davis
ROLL CALL: MAYOR DAVIS, MAYOR PRO TEM CERVANTEZ, COUNCIL

MEMBER DUVALL, COUNCIL MEMBER HEWITT AND COUNCIL

MEMBER MOLINA
ABSENT: None
STAFF: CITY MANAGER JOHNSON, ASSISTANT CITY ATTORNEY

KEARNS, CITY CLERK GERDES, FINANCE DIRECTOR REID,

PLANNING MANAGER LUCIA, CITY ENGINEER THORNTON,

PUBLIC WORKS DIRECTOR MONSON, FIRE BATTALION CHIEF
RAPOZA AND SHERIFF CAPTAIN SALAS.

PLEDGE OF ALLEGIANCE
Pledge of Allegiance was led by Council Member Molina.

COMMUNICATIONS FROM THE PUBLIC
Jonell Guzman, 670 W. Avenue L, Calimesa spoke regarding the Sr. Center and questioned where the monies were spent since the Center had been closed so long. She suggested a survey be completed of what the Seniors would like to see in the Center.

Diane Stuart, 37885 Marondi Drive, Calimesa questioned the code regarding election signs, stating that an Oak Hills neighbor turned in another neighbor for a flag they were flying that included the name “Trump 2024”. She further stated that Code Enforcement was awaiting an answer from the City Attorney as to whether the flag was considered a political sign. She quoted from the City Code that political signs could not be put out until 45 days prior to the election, adding that there are already political signs posted prior to the 45 days, stating that they are in violation.

Attachment 1A

City Council Action Minutes of the Regular Meeting of
September 6, 2022

James Wright, Rancho Calimesa Mobile Home Park Resident provided a letter to the Council and spoke regarding truck engine emissions and the impact of health effects due to warehouse project diesel truck traffic operations.

Gloria Garcia, 151 Sage Court, Calimesa spoke regarding the development and changes effecting the City, stating that the majority of Calimesa residents are not aware of what’s going on, adding that the projects were approved during COVID and no one was aware.

She spoke her opposition to traffic congestion and round-a-bouts on County line Road.

APPROVAL OF THE AGENDA

MOTION BY COUNCIL MEMBER MOLINA, SECONDED BY MAYOR PRO TEM CERVANTEZ, CARRIED 5-0 TO APPROVE THE AGENDA AS PRESENTED.

Mayor Davis asked if there were any items to be removed from the Consent Calendar for discussion. There were no items removed for discussion.

CONSENT CALENDAR (Items 1 – 10)
The following Consent Calendar items are expected to be routine and non-controversial. Council will act upon them at one time without discussion. Any Council Member or staff member may request removal of an item from the Consent Calendar for discussion.

1. APPROVAL OF CITY COUNCIL ACTION MINUTES.
a) City Council action minutes of a regular meeting of August 1, 2022. b) City Council action minutes of a special meeting of August 8, 2022. c) City Council action minutes of a special meeting of August 15, 2022 d) City Council action minutes of a special meeting of August 22, 2022

2. RECEIVE AND FILE CITY COMMISSION & BOARD MINUTES.
a) Planning Commission action minutes of a regular meeting of July 11, 2022 b) Planning Commission action minutes of a regular meeting of August 8, 2022

3. APPROVAL OF WARRANT REGISTERS.
a) Check Register Report with a total of $2,943,709.11 (Check Nos. 39005 to 39158) b) August 1, 2022 Council Payroll of $ 1,673.25
August 4, 2022 Payroll of $80,708.68
August 18, 2022 Payroll of $80,493.64
September 1, 2022 Payroll of $80,606.66
September 1, 2022 Council Payroll of $1,673.25

4. WAIVE FULL READING OF ANY PROPOSED ORDINANCES ON THE AGENDA.

This permits reading the title only in lieu of reciting the entire text of the Ordinances.

This does not take policy action on the Ordinances or approve or disapprove any Ordinances on the agenda.

City Council Action Minutes of the Regular Meeting of
September 6, 2022

5. TREASURER’S REPORT FOR THE MONTH ENDED JULY 31, 2022 RECOMMENDATION: That the City Council receive and file the Investment Report for the month ended July 31, 2022.

6. MODIFICATION OF AGREEMENT FOR BANK OF AMERICA MERCHANT PROCESSING SERVICE FEES.

RECOMMENDATION: That the City Council approve the modification of agreement for Bank of America Merchant Processing Service Fees, authorize the City Manager to sign the agreement, and take all actions necessary to implement the agreement.

7. ACCEPTANCE AND EXPENDITURE OF 2022 OFFICE OF TRAFFIC SAFETY

REGIONAL CRASH RESPONSE AND EXTRICATION IMPROVEMENT

PROGRAM (OTS) FUNDING ALLOCATION AWARD FOR EMERGENCY
OPERATIONS – AUTO EXTRICATION EQUIPMENT.

RECOMMENDATION: That the City Council:
a) Authorize the acceptance of 2022 Office of Traffic Safety Regional Crash Response and Extrication Improvement Program (OTS) funding allocation/award, to be used for the purchase and enhancement/replacement and upgrade of emergency fire department auto extrication equipment. b) Adopt Resolution No. 2022-42, a Resolution of the City Council of the City of Calimesa, California, accepting Office of Traffic Safety Grant Program (OTS) award through the California Office of Traffic Safety - EMS First Responder Equipment Grant (OTS) in the amount of $41,703.00; designating the City Manager as the authorized official to execute OTS Program Agreements on behalf of the City; and amending Fiscal Year 2022-23 budget to include acceptance of OTS grant funds.

8. APPROVE JOB DESCRIPTION AND SALARY RANGE FOR PLANNING

DIRECTOR
RECOMMENDATION: That the City Council adopt Resolution No. 2022-41, a Resolution of the City Council of the City of Calimesa, California Amending the City’s Position Classification Plan for City Personnel for Fiscal Year 2022-23 to add the Classification of Planning Director.

9. FEDERAL APPLICATION FOR ELIGIBILITY FOR PURCHASING SURPLUS PROPERTY.

RECOMMENDATION: That the City Council approve and authorize the City Manager to apply for eligibility to participate in the Federal Surplus Property Program to potentially purchase surplus property from the Federal Government.

10. SECOND AMENDMENT TO AGREEMENT FOR ENVIRONMENTAL

CONSULTING SERVICES BETWEEN THE CITY OF CALIMESA AND ALBERT A WEBB ASSOCIATES (“CONSULTANTS”) .

City Council Action Minutes of the Regular Meeting of
September 6, 2022

RECOMMENDATION: That the City Council approve the Second Amendment to Agreement for Environmental Consulting Services between the City of Calimesa and Albert A Webb Associates (“Consultant”), authorize the Mayor to execute the Agreement and approve Resolution 2022-45 amending the 2022-23 Fiscal Year Budget.

MOTION BY MAYOR PRO TEM CERVANTEZ, SECONDED BY COUNCIL MEMBER HEWITT, CARRIED 5-0 TO APPROVE THE CONSENT CALENDAR AS PRESENTED.

POLICE CHIEF COMMENTS & REPORTS
Captain Salas reported 288 calls for service from August 22, 2022 – September 4, 2022 with 25 citations given, 6 mental health calls, 2 assaults, 3 burglaries, 8 DUI calls with 2 arrests, 2 overdose calls, 5 domestic violence calls, 4 attempted suicides 7 felony thefts, 2 non-injury collisions, 2 injury collisions, 3 vandalism calls and 3 vehicle thefts. He further reported a fatal crash on upper Singleton Road, stating there were 2 brothers in the vehicle that rolled and overturned resulting in death of one of the brothers.

FIRE CHIEF COMMENTS & REPORTS
Fire Battalion Chief Rapoza reported 1,199 calls for service since January 1, 2022, 834 of those calls being medical aide, 42 fires and 257 miscellaneous calls for public assistance. He stated that Chief O’Connell and two other department members were in Ohio inspecting the aerial ladder truck that would be delivered about May 2023 to the City. He further reported that the Hemet fire was 5% contained and they were requesting more resources.

MAYOR & COUNCIL MEMBER REPORTING OF COUNTY & REGIONAL MEETINGS This is the time for comments, announcements and/or reports on meetings attended at public expense as required by AB 1234.

Council Member Molina reported that she attended a virtual RTA Board meeting.

PUBLIC HEARINGS

11. CONTINUED PUBLIC HEARING: SPECIAL ASSESSMENTS FOR WEED

ABATEMENT CHARGES
RECOMMENDATION: That the City Council open the continued public hearing, take public testimony and adopt Resolution No. 2022-44, A Resolution of the City Council of the City of Calimesa, California, confirming the report of charges to be placed as special assessments for weed abatement for 2022-2023.

Mayor Davis opened the public hearing.

Deputy City Manager/City Clerk Gerdes presented the agenda report.

There was no public testimony.

City Council Action Minutes of the Regular Meeting of
September 6, 2022

Mayor Davis closed the public hearing.

After Council discussion the following action was taken:

MOTION BY COUNCIL MEMBER DUVALL, SECONDED BY MAYOR PRO TEM CERVANTEZ, CARRIED 5-0 TO ADOPT RESOUTION NO. 2022-44, A RESOLUTION

OF THE CITY COUNCL OF THE CITY OF CALIMESA, CALIFORNIA CONFIRMING

THE REPORT OF CHARGES TO BE PLACED AS SPECIAL ASSESSMENTS FOR WEED ABATEMENT FOR 2022-2023.

12. PUBLIC HEARING: ZONING TEXT AMENDMENT (ZTA) 22-03 - AMENDMENTS TO CALIMESA MUNICIPAL CODE TABLE 18.25.030 TO CONDITIONALLY

ALLOW TELECOMMUNICATIONS FACILITIES IN THE NEIGHBORHOOD COMMERCIAL (“CN”) ZONE AND CALIMESA MUNICIPAL CODE TABLE

18.30.030 TO CONDITIONALLY ALLOW TELECOMMUNICATION FACILITIES IN LIGHT INDUSTRIAL (“LI”) AND BUSINESS PARK (“BP”) ZONES.

RECOMMENDATION: That the City Council open the public hearing and continue it to the City Council Meeting of September 19, 2022 to allow staff time to finalize the proposed ordinance.

Mayor Davis opened the public hearing.

MOTION BY MAYOR PRO TEM CERVANTEZ, SECONDED BY COUNCIL MEMBER HEWITT, CARRIED 5-0 TO OPEN THE PUBLIC HEARING AND CONTINUE IT TO THE CITY COUNCIL MEETING OF SEPTEMBER 19, 2022 TO ALLOW STAFF TIME TO FINALIZE THE PROPOSED ORDINANCE.

Council Member Hewitt recused herself from Item No. 13 due to a potential conflict of interest and left the room.

13. PUBLIC HEARING – BIRTCHER LOGISTICS CENTER AT OAK VALLEY TOWN

CENTER - A REQUEST BY SCOTT MULKAY ON BEHALF OF BIRTCHER

DEVELOPMENT MANAGEMENT, LLC FOR RECOMMENDED APPROVAL OF ENVIRONMENTAL ASSESSMENT 21-01 (EA 21-01), GENERAL PLAN AMENDMENT 21-01 (GPA 21-01), SPECIFIC PLAN AMENDMENT 21-01 (SPA 21-01), DEVELOPMENT PLAN REVIEW (“DPR”) 21-02 (“WEDGE” TRAILER STORAGE FACILITY ON TPM 37862 PARCELS 5 AND 6), DPR 21-03 AND CONDITIONAL USE PERMIT (“CUP”) 21-01 (BUILDING A – TPM 37862 PARCEL 4), DPR 21-04 AND CUP 21-02 (BUILDING B – TPM 37862 PARCEL 3), DPR 21- 05 AND CUP 21-03 (BUILDING C – TPM 37862 PARCEL 2), DPR 21-06 AND CUP 21-04 (BUILDING D – TPM 37862 PARCEL 1), CONSIDERATION OF A

FUNDING AND REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF

CALIMESA AND BIRTCHER DEVELOPMENT, AND REVISIONS TO ADOPTED

CONDITIONS OF APPROVAL FOR PREVIOUSLY APPROVED TENTATIVE PARCEL MAP 37862, ON A 115-ACRE PORTION OF THE SUMMERWIND RANCH SPECIFIC PLAN PROJECT.

City Council Action Minutes of the Regular Meeting of
September 6, 2022

RECOMMENDATION: That the City Council open the public hearing, take public testimony and:

1. Adopt CC Resolution 2022-46 Approving Environmental Assessment 21-01, adopting a second Addendum to the certified EIR for Summerwind Ranch at Oak Valley (SCH #2004061035),

2. Adopt CC 2022-47 Approving General Plan Amendment 21-01, amending the Land Use, Open Space, and Trails Maps in the General Plan

3. Introduce Ordinance No. 382 Specific Plan Amendment 21-01, adopting Specific Plan Amendment SP-1, Amendment 3 (Summerwind Ranch)

4. Adopt CC 2022-48 Approving Development Plan Review 21-02, for design review of the “Wedge” truck and trailer parking facility, subject to Conditions of Approval

5. Adopt CC 2022-49 Approving Development Plan Review 21-03 and Conditional Use Permit 21-01, for proposed industrial development consisting of the approximately 705, 783 square foot “Building A” and related site improvements

6. Adopt CC 2022-50 Approving Development Plan Review 21-04 and Conditional Use Permit 21-02, for proposed industrial development consisting of the approximately 467,252 square foot “Building B” and related site improvements

7. Adopt CC 2022-51 Approving Development Plan Review 21-05 and Conditional Use Permit 21-03, for proposed industrial development consisting of the approximately 457,267 square foot “Building C” and related site improvements

8. Adopt CC 2022-52 Approving Development Plan Review 21-06 and Conditional Use Permit 21-04, for proposed industrial development consisting of the approximately 619,338 square foot “Building D” and related site improvements

9. Adopt CC 2022-53 Approving the second revision to the adopted conditions of approval for the previously approved Tentative Parcel Map 37862.

10. Approve the Funding and Reimbursement Agreement between the City of Calimesa and Birtcher Development to set funding and fair share reimbursement terms related to procurement of fire apparatus to service the Project.

Mayor Davis opened the public hearing.

Planning Manager Lucia presented the agenda report through a PowerPoint presentation. Applicant Scott Mulkay also presented a PowerPoint on behalf of Birtcher Development in support of the project.

Linda Slover, Sharondale resident spoke in opposition of the project and questioned where the electricity and water would be coming from for this project.

Bill Thomas, 37420 Leta Drive, Calimesa addressed the EIR and Specific Plan adopted in 2005 for the project and spoke on the cumulative impact at build out,

City Council Action Minutes of the Regular Meeting of
September 6, 2022

adding that the 2005 study was too old and that steps should be taken to reassess the EIR and Specific Plan.

James Wright, Rancho Calimesa Mobile Home Park resident spoke in opposition to the Birtcher project and provided a written letter to the Council, continuing with his comments regarding diesel traffic and the operations of heavy equipment and the health problems that come with the dangerous air pollution.

Mayor Davis closed the public hearing.

Council Member Duvall stated that she had read the project outline but had not had an opportunity to conduct a deep dive into the Mitigation Monitoring Program, therefore stating that she could not comfortably vote on the project at this time.

Council Member Molina expressed her appreciation of those in the audience and thanked them for attending to see what Council was doing. She stated that she had read the project documents and commented that it has taken many years for this project to come to fruition and that the Council strives to make educational decisions not emotional decisions.

After Council discussion the following action was taken:

MOTION BY MAYOR PRO TEM CERVANTEZ, SECONDED BY COUNCIL MEMBER MOLINA, CARRIED 3-0-1-1(COUNCILMEMBER HEWITT RECUSED HERSELF FROM

THE ITEM AND COUNCIL MEMBER DUVALL ABSTAINED) TO ADOPT
RESOLUTION NO’S 2022-46 THROUGH 2022-53, APPROVE 1ST READING BY TITLE ONLY OF ORDINANCE NO. 382, AN ORDINANCE OF THE CITY OF CALIMESA ADOPTING THE “SUMMERWIND RANCH SPECIFIC PLAN SP-1, AMENDMENT 3” (SPA 21-01) MODIFYING LAND USE ACREAGES, LAND USE LOCATIONS, PASEO

ALIGNMENTS, REVISING LANDSCAPE SETBACKS WHEN TWO ADJOINING

PROPERTIES ARE COMBINED WITH THE SAME LAND USE, AND PROVIDING

ADMINISTRATIVE PROCEDURES FOR APPROVAL OF MINOR SIGNAGE AND OPEN SPACE AMENITIES ON APPROXIMATELY 115-ACRES OF REAL PROPERTY

LOCATED A QUARTER MILE NORTH OF CHERRY VALLEY ROAD TO A QUARTER

MILE NORTH OF SINGLETON ROAD AND APPROVE THE FUNDING AND

REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF CALIMESA AND

BIRTCHER DEVELOPMENT TO SET FUNDING AND FAIR SHARE

REIMBURSEMENT TERMS RELATED TO PROCUREMENT OF FIRE APPARATUS TO SERVICE THE PROJECT.

Council Member Hewitt returned to the meeting.

Mayor Davis called a recess at 7:46 p.m. Mayor Davis reconvened the meeting at 7:51 p.m.

RECESS CITY COUNCIL AND CONVENE SUCCESSOR AGENCY TO THE

CALIMESA REDEVELOPMENT AGENCY MEETING

City Council Action Minutes of the Regular Meeting of
September 6, 2022

City Council recessed at 7:51 p.m. - (Successor Agency proceedings are contained in separate minutes)

ADJOURN THE SUCCESSOR AGENCY TO THE CALIMESA REDEVELOPMENT

AGENCY AND RECONVENE CITY COUNCIL
Successor Agency adjourned, and City Council reconvened at 7:56 p.m.

COUNCIL MEMBERS’ COMMENTS & REPORTS
This is the time for additional general comments, announcements, reports on meetings attended at public expense as required by AB 1234, requests of staff, and other issues of concern to Council Members may be presented briefly at this time. The Council may not legally take action on any item presented at this time other than to direct staff to investigate a complaint or place an item on a future agenda unless (1) by a majority vote, the Council determines that an emergency situation exists, as defined by Government Code § 54956.5 or (2) by a four-fifths vote, the Council determines that there is a need for immediate action and the need for action arose subsequent to the agenda being posted as required by Government Code § 54954.2(b).

Council Member Duvall announced that the City and the Sheriff’s Department would be hosting their first “Coffee with a Cop” on October 14, 2022 from 8:00 am to 9:00 am at Kafé Royale, 1007 Calimesa Blvd., Calimesa. She gave a “shout-out” to the City and the Calimesa Chamber for hosting an excellent “State of the City” event.

Council Member Molina expressed her appreciation to all for a wonderful State of the City event.

Mayor Davis, Council Member Hewitt and Mayor Pro Tem Cervantez concurred with Council Member Molina and Council Member Duvall regarding the State of the City event.

Mayor Davis congratulated Planning Manager Lucia on her reclassification to Planning Director.

CITY MANAGER COMMENTS & REPORTS
City Manager Johnson expressed her appreciation to Council and staff for a successful State of the City event.

RECESS TO CLOSED SESSION
Assistant City Attorney Kearns announced that Closed Session Item A would not need to be held and announced Closed Session Item B. Mayor Davis recessed the meeting to Closed Session at 8:02 p.m.

CLOSED SESSION ITEMS
A. CONFERENCE WITH REAL PROPERTY NEGOTIATORS Government Code Section 54956.8:

Property: 625 W. County Line Road, Calimesa 92320. Agency negotiators: City Manager Bonnie Johnson and City Attorney Quinn Barrow. Negotiating parties: Troyce Lee Gayle , Jr., Administrator of Estate of Troyce Lee Gayle and Edward B. Fischel, LL.M, attorney for Administrator. Under negotiation: Price and Terms of Payment.

City Council Action Minutes of the Regular Meeting of
September 6, 2022

B. PUBLIC EMPLOYMENT
Pursuant to Government Code Section 54957
Title: City Manager

CLOSED SESSION ANNOUNCEMENT
No reportable action

ADJOURNMENT
Meeting was adjourned at 8:30 p.m. to the regular meeting of the City Council on Monday, September 19, 2022 at 6:00 p.m.

Respectfully Submitted,
Darlene Gerdes, City Clerk

City Council Meeting
Agenda Report
Agenda Item No. 2
SUBJECT: APPROVAL OF COMMISSION MEETING MINUTES
MEETING DATE: September 6, 2022
PREPARED BY: Darlene Gerdes, Deputy City Manager/City Clerk RECOMMENDATION: That the City Council approve the action minutes as presented for the June 14, 2022 Library Commission special meeting and the May 4, 2022 Parks, Trails & Community Services Commission regular meeting.

ATTACHMENTS:

Attachment A: Library Commission action minutes of June 14, 2022 special meeting.

Attachment B: Parks, Trails & Community Services Commission action minutes of May 4, 2022 regular meeting.

City Council Meeting
Agenda Report
Agenda Item No. 3
SUBJECT: APPROVAL OF WARRANT REGISTER
MEETING DATE: September 6, 2022
PREPARED BY: Celeste Reid, Finance Director
RECOMMENDATION: That the City Council approve the Warrant Register as presented.

SUMMARY: The attached Check Register Report for City Council’s approval is as follows:
a) Check Register Report with a total of $285,657.51 (Check Nos. 39159 - 39245) b) September 15, 2022 Payroll of $90,215.19

City Council Meeting
Agenda Report
Agenda Item No. 4
SUBJECT: WAIVE FULL READING OF ANY PROPOSED ORDINANCES ON

THE AGENDA
MEETING DATE: September 6, 2022
PREPARED BY: Darlene Gerdes, Deputy City Manager/City Clerk This permits reading the title only in lieu of reciting the entire text of the ordinances. This does not take
policy action on the Ordinances or approve or
disapprove any Ordinances on the agenda.

City Council Meeting
Agenda Report
Agenda Item No. 5
SUBJECT: COUNCIL TRAVEL, TRAINING AND MEETING/MILEAGE

EXPENSES
MEETING DATE: September 19, 2022
PREPARED BY: Darlene Gerdes, Deputy City Manager/City Clerk RECOMMENDATION: That the City Council approve the Council Travel, Training and Meeting/Mileage Expenses Report through August 31, 2022.

ATTACHMENTS:

Attachment A: Council Travel, Training and Meeting/Mileage Expenses Report through August 31, 2022.

FISCAL YEAR 2022-23

COUNCIL TRAVEL AND MEETING/MILEAGE EXPENSES
ATTACHMENT 5A
MEETING/MILEAGE 01-1100-7590

DATE DESCRIPTION AMOUNT DATE DESCRIPTION AMOUNT
August 18th Yucaipa State of the City $ 55.00
TOTAL TRAVEL/TRAINING $ - TOTAL MEETING/MILEAGE $ 55.00 REMAINING BALANCE $ 1,450.00 REMAINING BALANCE $ 545.00 MEETING/MILEAGE 01-1100-7590

DATE DESCRIPTION AMOUNT DATE DESCRIPTION AMOUNT
August 18th Yucaipa State of the City $ 55.00
TOTAL TRAVEL/TRAINING $ - TOTAL MEETING/MILEAGE $ 55.00 REMAINING BALANCE $ 1,450.00 REMAINING BALANCE $ 545.00

JEFF CERVANTEZ TRAVEL - MEETING/MILEAGE EXPENSES
TRAVEL/TRAINING 01-1100-7585

WENDY HEWITT TRAVEL - MEETING/MILEAGE EXPENSES
TRAVEL/TRAINING 01-1100-7585

FISCAL YEAR 2022-23

COUNCIL TRAVEL AND MEETING/MILEAGE EXPENSES
ATTACHMENT 5A
MEETING/MILEAGE 01-1100-7590

DATE DESCRIPTION AMOUNT DATE DESCRIPTION AMOUNT
TOTAL TRAVEL/TRAINING $ - TOTAL MEETING/MILEAGE $ -
REMAINING BALANCE $ 1,900.00 REMAINING BALANCE $ 600.00 MEETING/MILEAGE 01-1100-7590

DATE DESCRIPTION AMOUNT DATE DESCRIPTION AMOUNT
August 18th Yucaipa State of the City $ 55.00
TOTAL TRAVEL/TRAINING $ - TOTAL MEETING/MILEAGE $ 55.00 REMAINING BALANCE $ 1,450.00 REMAINING BALANCE $ 545.00

LINDA MOLINA TRAVEL - MEETING/MILEAGE EXPENSES
TRAVEL/TRAINING 01-1100-7585

BILL DAVIS TRAVEL - MEETING/MILEAGE EXPENSES
TRAVEL/TRAINING 01-1100-7585

FISCAL YEAR 2022-23

COUNCIL TRAVEL AND MEETING/MILEAGE EXPENSES
ATTACHMENT 5A
MEETING/MILEAGE 01-1100-7590

DATE DESCRIPTION AMOUNT DATE DESCRIPTION AMOUNT
18-Aug Yucaipa State of the City $ 55.00
TOTAL TRAVEL/TRAINING $ - TOTAL MEETING/MILEAGE $ 55.00 REMAINING BALANCE $ 1,450.00 REMAINING BALANCE $ 545.00

WYNONA DUVALL TRAVEL - MEETING/MILEAGE EXPENSES
TRAVEL/TRAINING 01-1100-7585

City Council Meeting
Agenda Report
Agenda Item No. 6
SUBJECT: 2
ND READING OF ORDINANCE NO. 382 - AN ORDINANCE OF
THE CITY OF CALIMESA ADOPTING THE “SUMMERWIND
RANCH SPECIFIC PLAN SP-1, AMENDMENT 3” (SPA 21-01)

MODIFYING LAND USE ACREAGES, LAND USE LOCATIONS,

PASEO ALIGNMENTS, REVISING LANDSCAPE SETBACKS

WHEN TWO ADJOINING PROPERTIES ARE COMBINED WITH

THE SAME LAND USE, AND PROVIDING ADMINISTRATIVE

PROCEDURES FOR APPROVAL OF MINOR SIGNAGE AND
OPEN SPACE AMENITIES ON APPROXIMATELY 115-ACRES OF

REAL PROPERTY LOCATED A QUARTER MILE NORTH OF

CHERRY VALLEY ROAD TO A QUARTER MILE NORTH OF

SINGLETON ROAD
MEETING DATE: September 6, 2022
PREPARED BY: Darlene Gerdes, Deputy City Manager/City Clerk RECOMMENDATION: That the City Council conduct 2nd reading by title only and adopt Ordinance No. 382, AN ORDINANCE OF THE CITY OF CALIMESA ADOPTING THE “SUMMERWIND RANCH SPECIFIC PLAN SP-1, AMENDMENT 3” (SPA 21-01) MODIFYING LAND USE

ACREAGES, LAND USE LOCATIONS, PASEO ALIGNMENTS, REVISING LANDSCAPE

SETBACKS WHEN TWO ADJOINING PROPERTIES ARE COMBINED WITH THE SAME LAND

USE, AND PROVIDING ADMINISTRATIVE PROCEDURES FOR APPROVAL OF MINOR SIGNAGE AND OPEN SPACE AMENITIES ON APPROXIMATELY 115-ACRES OF REAL

PROPERTY LOCATED A QUARTER MILE NORTH OF CHERRY VALLEY ROAD TO A QUARTER

MILE NORTH OF SINGLETON ROAD
ATTACHMENTS:

Attachment A: Ordinance No. 382

ORDINANCE NO. 382

AN ORDINANCE OF THE CITY OF CALIMESA ADOPTING THE
“SUMMERWIND RANCH SPECIFIC PLAN SP-1, AMENDMENT 3” (SPA 21-01)

MODIFYING LAND USE ACREAGES, LAND USE LOCATIONS, PASEO

ALIGNMENTS, REVISING LANDSCAPE SETBACKS WHEN TWO ADJOINING

PROPERTIES ARE COMBINED WITH THE SAME LAND USE, AND

PROVIDING ADMINISTRATIVE PROCEDURES FOR APPROVAL OF MINOR SIGNAGE AND OPEN SPACE AMENITIES ON APPROXIMATELY 115-ACRES

OF REAL PROPERTY LOCATED A QUARTER MILE NORTH OF CHERRY

VALLEY ROAD TO A QUARTER MILE NORTH OF SINGLETON ROAD
WHEREAS, Scott Mulkay on behalf Birtcher Development Management, LLC (the “Applicant”) has submitted a Specific Plan Amendment (“SPA 20-01”) application to the City of Calimesa (“City”) for approval of amendments to the Summerwind Ranch Specific Plan Area No. 1, Amendment No. 2 within the planned Oak Valley Town Center, on 115-acres of real property located approximately a quarter mile northwest of the Cherry Valley Boulevard/I-10 crossing to approximately a quarter mile northwest of the Singleton Road/I-10 crossing. (APNS: 413-190-006, 413-190-007, 413-190-021, 413-190-025, 413-290- 047, 413-290-075), and which are also collectively referred to as Summerwind Ranch Specific Plan SP1, Amendment 3 (“SP-1, A3”); and WHEREAS, SPA 21-01 includes minor changes to the land use designations of three noncontiguous portions of the site to business park as follows: 1) modify the land use designation of 2.0 acre planning area TC-1A from Commercial to 1.8 acres of Business Park and 0.2 acres of right-of way, 2) modify the land use designation for 3.1 acre planning area TC-5 from Commercial to Business Park, 3) modify the land use designation of a 0.6 acre area within planning area TC-10 from open space to business park. The SPA would also modify the trails plan to 1) realign the residential phase 1 paseo from meandering into RLC-1 to remaining within planning area A-9 and 2) modify the asphalt paseo located within planning areas TC-10 and A-9 to a compacted soil or decomposed granite hiking trail. Modifications will be incorporated to Summerwind Ranch Specific Plan land use figures III-1, III-10, IV-68, and IV-70.

The SPA would also revise landscape setbacks such that no additional setbacks would be required along the common property line for two adjoining properties if they are combined with the same land use includes administrative procedures for approval of minor signage and open space amenities; and WHEREAS, in conjunction with the Applicant’s proposed Specific Plan Amendment SPA 21-01, the Applicant has submitted applications for a General Plan Amendment (GPA 21-01), Development Plan Reviews (DPRs 21-02 through 21-06), Conditional Use Permits (CUPs 21-01 through 21-04), a Funding and Reimbursement Agreement, and the second revision to previously adopted Tentative Parcel Map (TPM 37862) conditions of approval; and
WHEREAS, GPA 21-01, SPA 21-01, DPRs 21-02 through 21-06, CUPs 21-01 through 21-04, the Funding and Reimbursement Agreement, and revisions to previously adopted TPM 37862 conditions of approval are considered a “project” pursuant to the California Environmental Quality Act, Public Resources Code Section 21000 et seq. and the State CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et seq. (collectively “CEQA”), and shall be collectively referred to as the “Project”; and
WHEREAS, on April 18, 2005, pursuant to Resolution 2005-14, the City Council of the City of Calimesa certified a program Environmental Impact Report for the Summerwind Ranch at Oak Valley Amendment No. 1 to the Oak Valley Specific Plan Area No. 1 (SCH#2004061035) (herein referred to as the “Summerwind Ranch EIR”), and approved a Mitigation Monitoring and Reporting Program and statement of overriding considerations as part thereof, for the Summerwind Ranch Specific Plan, in accordance with the California Environmental Quality Act (CEQA); and Attachment 6A

WHEREAS, the Summerwind Ranch EIR evaluated the environmental impacts associated with the Summerwind Ranch Specific Plan and related General Plan amendments and zoning code amendments, and determined that the Summerwind Ranch project would result in significant and unavoidable impacts in the category of air quality (mobile source, vehicle emissions during the operation of the project, and construction emissions); and
WHEREAS, pursuant to Environmental Assessment EA 21-01, a second Addendum to the previously certified Summerwind Ranch EIR (herein referred to as the “QR Birtcher Logistics Center at Oak Valley EIR Addendum”) has been prepared in compliance with the requirements of CEQA, and pursuant to Resolution No. 2022-10, the Planning Commission has recommended that the City Council approve the QR Birtcher Logistics Center at Oak Valley EIR Addendum because the City Council has found, in its independent judgment, that Project would not result in any new or increased significant impacts on the environment not already analyzed in the Summerwind Ranch EIR (neither as a result of its minor changes to the originally approved development or changed circumstances since the previous approval), and there is no new information of substantial importance that was not known at the time of the certification of the Summerwind Ranch EIR; and
WHEREAS, the Planning Commission held a duly noticed public hearing on August 8, 2022, on the proposed second Addendum to the EIR and the Project, at which time all interested parties were given the opportunity to be heard and to present evidence, and after closing the public hearing the Planning Commission approved PC Resolution 2022-12, recommending that the City Council approve SP 21-01; and
WHEREAS, the City of Calimesa Planning Department on August 26, 2022 caused to be published a legal notice in the Yucaipa News Mirror, a local paper of general circulation, indicating the date, time and location of the public hearing on proposed Environmental Assessment (EA 21-01), for the QR Birtcher Logistics Center at Oak Valley Town Center EIR Addendum, General Plan Amendment GPA 21-01, Specific Plan Amendment SPA 21-01, DPRs 21-02 through 21-06, CUPs 21-01 through 21-04, Funding and Reimbursement Agreement, and revisions to previously adopted Tentative Parcel Map TPM 37862 conditions of approval in compliance with state law, and WHEREAS, not less than ten days prior to the public hearing, the City also distributed copies of the Public Hearing Notice to servicing utilities, adjacent public agencies, Native American Tribes; and in addition, copies of the Notice were distributed via United States Postal Service (USPS) to local agencies, property owners within a 300-foot radius of the Project site in accordance with state law, and other interested parties; and the Public Hearing Notice was also posted on the City’s website, at City Hall, and at the Calimesa library; and
WHEREAS, on September 6, 2022 the City Council held a duly noticed public hearing to consider the applications for the Project and following the receipt of all testimony, closed the public hearing.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CALIMESA DOES ORDAIN AS FOLLOWS:

Section 1. The City Council finds that the recitals contained in this Ordinance and the Specific Plan Amendment in the attached Exhibit A are true and correct, and incorporated by this reference as if fully set forth herein.

Section 2. Pursuant to the California Environmental Quality Act (“CEQA”), the City Council considered the QR Birtcher Logistics Center at Oak Valley EIR Addendum and the previously certified Summerwind Ranch EIR (SCH# 2004061035), including the approved Mitigation Monitoring and Reporting Program and statement of overriding considerations, prior to making its decision on the proposed Specific Plan Amendment (SPA 21-01).

Section 3. The City Council finds that the proposed Specific Plan Amendment (SPA 21-01) will help to provide local job opportunities for residents in Calimesa. Employment, including commercial, office, light industrial and public facility will be within close proximity to existing and future residents of Summerwind Ranch, and to Calimesa residents as a whole. The business park use provides for an increased opportunity for employment in close proximity to housing and shopping areas in the commercial core and assists in the City’s objectives of proving more job opportunities within the housing rich / jobs deficient City of Calimesa.

Section 4. The City Council finds that the site is physically suitable for type and density of development because all structures and related improvements can be accommodated on the subject site consistent with the City of Calimesa Development Code.

Section 5. The City Council finds that the proposed Specific Plan Amendment (SPA 21-01) is in the public interest in that the adoption of the land use regulations contained within the Summerwind Ranch Specific Plan SP-1, A3 will provide for comprehensive and cohesive land use and development within the project area.

Section 6. The City Council finds that through the proposed Specific Plan Amendment (SPA 21-01) will protect public health, safety, convenience, and welfare of the City.

Section 7. Based on the findings contained in Sections 1 through 6 of this Ordinance, the City Council approves Specific Plan Amendment SPA 21-01, a Specific Plan Amendment modifying land use acreages, land use locations, paseo alignments, revising landscape setbacks when two adjoining properties are combined with the same land use, and providing administrative procedures for approval of minor signage and open space amenities on an approximate 115-acre area located a quarter mile north of Cherry Valley Road to a quarter mile north of Singleton Road.

Section 8. Publication. The City Clerk shall certify to the adoption of this ordinance and cause the same to be published as required by law.

INTRODUCED AND PASSED UPON FIRST READING by title only, upon the following vote, this 6th day of September 2022.

AYES: Cervantez, Davis and Molina
NOES:

ABSENT: Hewitt (Council Member Hewitt was recused)
ABSTAIN: Duvall
PASSED, APPROVED, AND ADOPTED this 19th day of September 2022.

AYES:

NOES:

ABSENT:

ABSTAIN:

_____________________________________

WILLIAM DAVIS, MAYOR
ATTEST:
_____________________________________

DARLENE GERDES, CITY CLERK
APPROVED AS TO FORM:
____________________________________

QUINN BARROW, CITY ATTORNEY

Exhibit A
SPECIFIC PLAN AMENDMENT SP-1, AMENDMENT 3
Electronic Copies available on the City of Calimesa website:
https://www.cityofcalimesa.net/Archive.aspx?AMID=45

City Council Meeting
Agenda Report
Agenda Item No. 7
SUBJECT: BIENNIAL NOTICES REGARDING REVIEW AND UPDATES OF THE CITY’S AND SUCCESSOR AGENCY’S CONFLICT OF INTEREST
CODES.

MEETING DATE: September 19, 2022
PREPARED BY: Deputy City Manager/City Clerk Gerdes
RECOMMENDATION: That the City Council Receive and file the Biennial Notices regarding the updates to the City’s and Successor Agency’s Conflict of Interest Codes; and designate the City Clerk to execute those Biennial Notices.

BACKGROUND/DISCUSSION: The Political Reform Act, Government Code Sections 81000, et seq., requires the City to adopt a Conflict of Interest Code for each department of the City and requires every local government agency to review its conflict of interest code biennially to determine if it is accurate and up to date.

Pursuant to Resolution No. 2018-56, the City last adopted an updated Conflict of Interest Code four years ago containing designated positions and disclosure categories for certain departments of the City.

The first step in the review and update process is for staff to review the current Conflict of Interest Code and prepare and submit to the City Council a Biennial Notice form indicating whether or not amendments to the City’s or other local agency Code is required. Attached is a Biennial Notice form for both the City and the Successor Agency indicating that there are changes to be made to the Codes for each entity. The City and Successor Agency are then to complete the update process by December 31st of each even-numbered year. By this agenda item, the City Council is designating the City Clerk to be the official to execute both Biennial Notices. As indicated in the attached Biennial Notices, City staff has also completed review of the City’s and Successor Agency’s Codes and determined that both need minor amendments.

On the October 3, 2022 agenda, an updated version of the City’s and Successor Agency’s Codes will be brought forth for adoption.

ATTACHMENTS:

Attachment A: Biennial Notice for City’s Conflict of Interest Code Attachment B: Biennial Notice for Agency’s Conflict of Interest Code

City Council Meeting
Agenda Report
Agenda Item No. 8
SUBJECT: 4
TH STREET PARK EXPANSION – CONTRACT AWARD FOR

PARK DESIGN SERVICES
MEETING DATE: September 19, 2022
PREPARED BY: Mari Shakir, Associate Engineer
RECOMMENDATION: That the City Council award a contract to RHA Landscape ArchitectsPlanners, Inc. for Park Design Services for the 4th Street Park Expansion Project in the amount of $244,960.

BACKGROUND: On April 4, 2022, City staff along with the Parks, Trails & Community Services Commission proposed the construction of an expansion to the existing 4th Street Park and requested City Council to direct staff to release a Request for Proposal for design services. City Council approved the request. The existing park includes playground and exercise equipment, picnic tables, drinking fountains, a pavilion, garden areas, and walking paths. The 2.31-acre City-owned lot at 941 5 th Street is currently vacant except for a portion of the dog park that extends onto the property.

Staff released the RFP on July 12, 2022. Proposals were accepted until August 15, 2022. Four proposals were received from RHA, BGB Design Group, Nuvis, and Community Works Design Group. The proposals were reviewed by a panel consisting of Associate Engineer Mari Shakir, Associate Engineer Kenneth Bailey, Executive Assistant Yaiza Benson, Landscape Architect Steve Frenken, and Planning Director Kelly Lucia. The panel felt that all 4 firms were well qualified, so they were each scheduled for an interview. The interview consisted of a presentation by the firm followed by questions from the panel. Based on the proposals and interviews, the panel felt that RHA would be the best fit for this project.

RHA’s proposed fee from preliminary design to project completion is $244,960.

DISCUSSION: Staff has identified two funding sources for this project: Park Improvement Fees and a small Prop 68 grant. On November 2, 2020, Council passed a resolution to approve the filing of an application for Prop 68 Per Capita grant funds. For the General Per Capita funding, the City of Calimesa received an allocation of $177,952. For the Urban County Per Capita funding, the City received an additional allocation of $5,598. Staff submitted an application on December 23, 2021 and is awaiting further instructions from the grant administrator. The Park Improvement Fees fund has an approximate balance of $3.3 million. After reviewing similar park projects in Southern California, staff feels this amount is adequate to construct the expansion. Once design is underway and an engineer’s estimate is complete, staff will be returning to Council for construction budget approval.

On October 6, 2021, a workshop was held at the Parks, Trails, and Community Commission meeting to solicit feedback from the community. Neighboring residents were sent letters to attend, and the general public was noticed via public hearing, social media, and a News Mirror posting. An online survey was also provided to acquire feedback. A second community workshop was held on November 8, 2021 as a Special Joint Workshop of the Planning Commission and the Parks, Trails and Community Services Commission.

After the two workshops, staff moved forward with a site plan to submit for the Prop 68 grant. The major components included are:
- 4 Pickleball courts
- Walking trails
- An adaptable open sports area
- Parking lot
- Maintenance shed
- Bathrooms
Once the design services have commenced, RHA will be expected to fine-tune costs, and additional amenities may be proposed based on allowable budget. Further workshops are expected.

FISCAL IMPACT: The cost of design services will be paid for from Fund 39 – Park Improvement Fees. The fund total is about 3.3 million.

ATTACHMENTS:

Attachment A: RHA Proposal, Project Schedule, and Fee Schedule Attachment B: Agreement for Landscape Architecture Services

Attachment 8A

1 PROFESSIONAL AGREEMENT
FOR

LANDSCAPE ARCHITECTURE SERVICES FOR THE DESIGN AND
CONSTRUCTION OF THE 4TH STREET PARK EXPANSION

1. PARTIES AND DATE.

This Agreement is made and entered into this day of , 20___, by and between the City of Calimesa, a municipal organization organized under the laws of the State of California with its principal place of business at 908 Park Avenue, Calimesa, California 92320 ("City") and RHA LANDSCAPE ARCHITECTS PLANNERS, INC, a Corporation, with its principal place of business at 6800 Indiana Avenue, Suite 245, Riverside, CA 92506 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibility for the provision of professional landscape architecture consultant services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it has the experience, staff and capability to provide the type of outreach services necessary to assist the City in the accomplishment of the program. Consultant represents that it is licensed in the State of California and is familiar with the plans of City.

2.2 Project.

City desires to engage Consultant to render such services for the landscape architecture consultant services for the design and construction of the 4th Street Park Expansion ("Project") as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional landscape architecture consultant services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. This Agreement shall commence on September 19, 2022, and shall remain and continue in effect until tasks described herein are completed, but in no event later than December 31, 2024, unless sooner terminated pursuant to the provisions of this Agreement.

Attachment 8b

2 3.2 Responsibilities of Consultant.

3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.

Consultant shall complete, execute, and submit to City a Request for Taxpayer Identification Number and Certification (IRS FormW-9) prior to commencement of any Services under this Agreement. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.

3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.

3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City.

The key personnel for performance of this Agreement are as follows: Doug Grove, President and Greg Meek, Principal.

3.2.5 City's Representative. The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. The City Manager hereby designates Associate Engineer, or his or her designee, as the City's contact for the implementation of the Services hereunder. Consultant

3 shall not accept direction or orders from any person other than the City's Representative or his or her designee.

3.2.6 Consultant's Representative. Consultant hereby designates Doug Grove, or his or her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.

3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.

3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.2.10 Insurance.

4 3.2.10.1 Time for Compliance. Consultant shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.

3.2.10.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder and without limiting the indemnity provisions of the Agreement, the Consultant in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement, the following policies of insurance. If the existing policies do not meet the Insurance Requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(a) Commercial General Liability: Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.

The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Agreement.
(b) Automobile Liability Insurance: Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $2,000,000 per accident for bodily injury and property damage. (c) Professional Liability: (if Design/Build), with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
(d) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.

3.2.10.3 Endorsements. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval.

5 (a) The policy or policies of insurance required by Section 3.2.10.2 (a) Commercial General Liability shall be endorsed to provide the following:
(1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.

Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the Agreement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(b) The policy or policies of insurance required by Section 3.2.10.2 (b) Automobile Liability and (c) Professional Liability shall be endorsed to provide the following:
(1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) The policy or policies of insurance required by Section 3.2.10.2 (d) Workers' Compensation shall be endorsed to provide the following:
(1) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the indemnified parties.
(2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.

3.2.10.4 Primary and Non-Contributing Insurance. All insurance coverages shall be primary and any other insurance, deductible, or self-insurance maintained by the indemnified parties shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.

6 3.2.10.5 Waiver of Subrogation. Required insurance coverages shall not prohibit Consultant from waiving the right of subrogation prior to a loss. Consultant shall waive all subrogation rights against the indemnified parties. Policies shall contain or be endorsed to contain such provisions.

3.2.10.6 Deductible. Any deductible or self-insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.

3.2.10.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

3.2.10.8 Failure to Maintain Coverage. Consultant agrees to suspend and cease all operations hereunder during such period of time as the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Consultant until Consultant has fully complied with the insurance provisions of this Agreement.

In the event that the Consultant's operations are suspended for failure to maintain required insurance coverage, the Consultant shall not be entitled to an extension of time for completion of the Services because of production lost during suspension.

3.2.10.9 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.2.10.10 Insurance for Subconsultants. All Subconsultants shall be included as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing Subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City as an Additional Insured to the Subconsultant's policies.

3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall

7 exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

3.2.12 Business License. Consultant shall procure a City of Calimesa Business License and renew it annually during the term of the Agreement.

3.3 Fees and Payments.

3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed two hundred forty-four thousand and nine hundred sixty DOLLARS ($244,960) (“Total Compensation”) without written approval of City's City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant.

The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon.

3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City.

3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City. The City Manager may approve Extra Work, provided the cost of the Extra Work, does not exceed ten percent (10%) of the Total Compensation as set forth in Section 3.3.1, for a total increase of $XXX. Any Extra Work in excess of this amount shall be approved by the City Council.

3.3.5 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or

8 "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

3.4 Accounting Records.

3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

3.5 General Provisions.

3.5.1 Termination of Agreement.

3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause.

3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.

3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

9 Consultant:

RHA Landscape Architects Planners, Inc.
6800 Indiana Avenue, Suite 245
Riverside, CA 92506
Attn: Doug Grove, President
City:

City of Calimesa
908 Park Avenue
Calimesa, CA 92320
Attn: Mari Shakir, Associate Engineer
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.5.3 Ownership of Materials and Confidentiality.

3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data.

Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk.

3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any

10 magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

3.5.3.3 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.

Consultant shall have five (5) working days after receipt of the Release Notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.

3.5.6 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.5.7 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action.

3.5.8 Indemnification.

3.5.7.1 Indemnity for Design Professional Services. To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, protect, indemnify, and hold harmless City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith, and reimbursement of attorney’s fees and costs of defense (collectively “Liabilities”), whether actual, alleged or threatened, which arise out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful misconduct of Consultant, its officers, agents, servants, employees, subcontractors, material men, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of design professional services under this Agreement by a “design professional,” as the term is defined under California Civil Code Section 2782.8(c).

3.5.8.2 Other Indemnities.

11 (a) Other than in the performance of design professional services, to the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence or breach of the provisions of this Agreement, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
(b) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or
indemnification arising under this subparagraph.
(c) Consultant shall obtain executed indemnity agreements with provisions identical to those in this section from each and every subcontractor or any other person or entity involved by, for, with or

12 on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s subcontractor, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant’s subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.

3.5.8.3 Workers’ Compensation Acts not Limiting. Consultant’s indemnifications and obligations under this section, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.

3.5.8.4 Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.

3.5.8.5 Survival of Terms. Consultant’s indemnifications and obligations under this section shall survive the expiration or termination of this Agreement.

3.5.9 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.

3.5.10 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County.

3.5.11 Time of Essence. Time is of the essence for each and every provision of this Agreement.

3.5.12 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.

3.5.13 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

13 3.5.14 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.

3.5.15 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days.

All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.5.16 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.5.17 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

3.5.18 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.5.19 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.5.20 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Further, Consultant warrants that it has not promised or paid to any city employee or official, any rebates, kickbacks, or other unlawful considerations contingent upon or resulting from the award or making of this Agreement.

For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.5.21 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or

14 applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.5.22 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5.23 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.5.24 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.6 Subcontracting.

3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
[Signatures on following page.]

15 IN WITNESS WHEREOF, the parties have executed this Professional Services Agreement for landscape architecture services on this ____ day of __________, 202__.

CITY OF CALIMESA [INSERT NAME OF CONSULTANT]
By: By:_____________________________
Bonnie Johnson
City Manager Name:___________________________
Title:____________________________
Attest:
[If Corporation, TWO SIGNATURES, President OR
Vice President AND Secretary, AND CORPORATE
SEAL OF CONSULTANT REQUIRED]
By:

Darlene Gerdes By:_____________________________
City Clerk
Name:___________________________
Approved as to Form: Title:____________________________

RICHARDS WATSON GERSHON
By:

Quinn Barrow
City Attorney

City Council Meeting
Agenda Report
Agenda Item No. 9
SUBJECT: BANK OF AMERICA CORPORATE CARD AGREEMENT FOR

PURCHASE CARD PROGRAM, CALIFORNIA PUBLIC SECTOR

GROUP PROGRAM PARTICIPTION AND INCREASE OF
MONTHLY CREDIT CARD LIMIT FROM $25,000 TO $50,000
MEETING DATE: September 19, 2022
PREPARED BY: Celeste Reid, Finance Director
RECOMMENDATION: That the City Council approve the updated Bank of America Corporate Card Service Agreement, participation in the California Public Sector Group Credit Program, approve the increase of the City of Calimesa’s credit card limit from $25,000 to $50,000 and authorize the City Manager to sign all agreements and take all actions necessary for implementation of the above agreements.

BACKGROUND: The City of Calimesa currently maintains city credit card management with the City’s operational bank, Bank of America on the Small Business platform. Bank of America’s policy recommendations will no longer allow public sector clients to participate on the Small Business platforms for credit card management. Full implementation is likely to be completed within the next business year of operations at which time the City of Calimesa will no longer be allowed to maintain credit cards under the current agreement with the Small Business platform.

DISCUSSION: City staff and Bank of America advisors have evaluated the options available for the City of Calimesa. The City of Calimesa may enter into an agreement and transition credit card management to what is referred to as a purchasing card program. This program allows the City to maintain credit cards with individual names as well as respective departments for use for credit card transactions. This is beneficial for the purposes of protecting the identity and credit of individual staff members as well as allow for reasonable use of credit cards for staff members that represent City departments for purchases that relate to city business operations. The City may also participate in the program and fee structure established through the California Public Sector Group.

Participation in the California Public Sector Group will provide for fee waivers and may allow for future rebate opportunities depending on annual credit card purchases.

The monthly credit limit has also been evaluated and city staff recommends an increase of the monthly credit card limit from $25,000 to $50,000. While the City has significant cash reserves and maintains strong cash position, in the event of an emergency, the recommended amount of $50,000 is considered a reasonable amount to have available through credit for the potential acquisition or rental of large-scale equipment and supplies. It should be noted current City policy consists of

payment in full for all monthly credit card balances and therefore no anticipated credit card finance charges or interest expenditures are expected in relation to the increase of monthly credit card limit.

City staff respectfully recommends approval of the Bank of America Corporate Service Agreement, participation in the California Public Sector Group program, and an increase to the monthly credit card limit to $50,000 to support potential emergency operations.

FISCAL IMPACT: There is no annual fiscal impact.

ATTACHMENTS:

Attachment A: Bank of America Corporate Card Service Agreement Attachment B: California Public Sector Group Schedule of Fees and Charges

00-35-6182NSBW 02-28-2020 AK Page 1 of 16
Bank of America – Confidential © 2020 Bank of America Corporation Bank of America Corporate Card Service Agreement
This Bank of America Corporate Card Service Agreement (the “Agreement”) is made by and between Bank of America, N.A., a Bank of America company (“Bank of America”) and (“Company”) and shall be effective as of (“Effective Date”).

The terms “we,” “us” and “our” refer to Bank of America. The terms “you” and “your” refer to Company.

With our Corporate Card Services you are allowed to open Card Accounts for your business purposes. You may select one or more of the following card programs: purchasing card program; travel and entertainment card program; accounts payable card program or fleet card program; and the ancillary services set out in Section 17 of this Agreement (each, a “Service,” and collectively, the “Services”). You may begin using a Service once we have approved such use and we have received all required and properly executed forms and you have successfully completed any testing or training requirements. Whenever you use a Service, you agree to be bound by this Agreement, as amended from time to time, and to follow the procedures in the applicable Materials.

1. DEFINITIONS
AML/Sanctions Laws. All applicable laws relating to client identification, the prevention of money-laundering, terrorism, the use of proceeds of crime, economic or political sanctions, including Sanctions, and any other similar matter.

Applications. Proprietary Software and/or Materials accessed through our digital platforms or through any of our third party vendor sites and any related services used to provide the Services, including (i) the Global Reporting Management System ("GRAM") hosted by MasterCard, (ii) a pin platform run by us, (iii) a payment center for US cardholders run by Total Systems, (iv) the Works System, and (v) any other third party vendor we may use from time to time.

Authorized User. Any person or entity, including any Cardholder, with your actual, implied or apparent authorization to use the Services and/or Applications.

Billing Statement. The official invoice provided to you, a Participant and/or Cardholder which identifies each Transaction posted during the billing cycle, the date of each Transaction and the applicable fees and charges, payment amount due and Payment Due Date.

Business Day. Each day on which we are open for business related to the Services.

Card. Each plastic card which we issue for your Card Account using a Service.

Card Account. Each MasterCard® or Visa® account which we issue to you or to a Cardholder with respect to a Service, including a Cardless Account.

Cardholder. Your employee or any other person whom you designate in writing and whom we approve to receive a Card. If you or a Cardholder makes a Card Account number, Convenience Check, or a number associated with a Cardless Account available to another party, that person will also be considered a Cardholder.

Cardholder Account. A sub-account of your Card Account, which is set up by us for each Cardholder (at your request), for reporting and/or billing purposes.

Cardless Account. An Account for which we assign only an account number, but no Card is issued.

Cash Advance. Use of a Card Account through a Card or Convenience Check to obtain cash from a participating financial institution, merchant or automated teller machine. “Cash” for these purposes includes currency, and any other items readily convertible into cash such as money orders, travelers checks, foreign currency, lottery tickets, casino chips and race-track wagers, regardless of whether you allow Cardholders to purchase such items.

Client Proprietary Information or CPI. All the data of a Client stored on our database systems related to the Services that constitute Confidential Information, including Personal Data.

Confidential Information. All information concerning or relating to a party or any of its affiliates, employees, agents or representatives, including:
i. a party’s business practices and strategies or information concerning business practices or strategies, including any documents prepared by a party or any of its employees, agents or representatives (including lawyers, accountants and financial advisors); and
ii. any other information which is manifestly confidential by virtue of its nature or description or which a party expressly designates as being confidential.

Convenience Check. A check which we may provide to you, upon your request, to draw on a Card Account.

Attachment 9A

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Bank of America – Confidential © 2020 Bank of America Corporation Data Protection Laws. Collectively, all U.S. national and state laws and regulations, the EU Data Protection Directive (Directive 95/46/EC), the EU General Data Protection Regulation (Regulation 2016/679), and the United Kingdom Data Protection Act 1998, and all other applicable laws regarding the collection, use, storage, transfer and processing of data, including Personal Data, relating to individuals (or, where applicable, legal persons). The term Data Protection Laws includes any laws, regulations or decrees promulgated by a financial regulator governing the use and/or disclosure of customer data, including bank secrecy obligations.

Data Protection Authority. The competent authority for regulating the processing of Personal Data in a relevant jurisdiction.

De-identification or De-identified. Removing, obscuring, masking, or obfuscating enough Personal Data from a record to ensure that the remaining information does not directly or indirectly identify an individual.

E-Commerce Laws. All applicable laws for or on the regulation of commerce and business via electronic means.

Employee Misuse. Use of a Card Account, Convenience Check or Card where: (i) the person or entity using the Card Account, Convenience Check or Card is your employee or agent; (ii) that person or entity has actual, implied or apparent authority to use the Card Account, Convenience Check or Card; and (iii) that use does not benefit you directly or indirectly.

Extended Workforce. Any of our subcontractors or vendors with access to CPI.

Financial Services Industry Best Practices. The standards, policies and practices generally used in the corporate card issuing business by banks of comparable size and scope to us, including appropriate mitigating controls.

Fraud. Misuse or theft of card information by individuals that are not your employees or agents that involves, but is not limited to, account takeover, counterfeit cards, lost/stolen cards, fraudulent card not present Transactions, skimming, database hacking, franchise software hacking or phishing.

Grace Days. The number of days after the Billing Statement closing date within which payment is due.

Guarantor. A person or entity, other than you or a Participant, that agrees to assume responsibility for your obligations under the Agreement, including payment of any amounts owed.

Information Processing System(s). The individual and collective electronic, mechanical, and software components of our and our Extended Workforce's operations that store, access, process or protect data related to the Services.

Information Security Event. Any situation where there is unauthorized access, acquisition, unauthorized use or disclosure of unencrypted CPI or encrypted electronic CPI and the relevant confidential process(es) or key(s), that is capable of compromising the security, confidentiality or integrity of the CPI maintained by us and, with respect to Personal Data, that we have determined creates a substantial risk of identity theft or fraud against an individual.

Information Security Policy. Our written information security policy, which may be amended from time to time by us in our discretion.

License. A non-transferable, nonexclusive, worldwide, revocable, limited license to access and use the Applications and any related services, in a manner intended for authorized use, and to the extent authorized by us.

Materials. The Software, user identification codes, passwords, codes, keys, test keys, security devices, authenticators, personal identification numbers,embedded algorithms, digital signatures and certificates, other similar devices and information, User Documentation and any documentation we provide to you in connection with the Services.

Notifiable Event. Any actual or suspected loss or theft of a Card, Convenience Check or Card Account or any actual or suspected Unauthorized Use or Fraud.

Participant. A Subsidiary or affiliate of yours which you designate in writing on a Participant Account Form and which we approve, for us to issue a Card Account with its own account number. A Participant Account Form, upon completion by you and approval by us, will be made a part of this Agreement.

Payment Due Date. The payment due date shown on the Billing Statement which date shall be the last day of the Grace Days or such other agreed between us in writing.

PCI-DSS. The Payment Card Industry - Data Security Standard as amended from time to time and any successor standard adopted by the payment card industry establishing security standards for payment cards.

Personal Data. Means (i) any “non-public personal information” as such term is defined under Title V of the U.S. Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. and the rules and regulations issued thereunder; (ii) any "personal data" as defined in EU Directive 95/46/EC, EU Regulation 2016/679, the United Kingdom Data Protection Act 1998 or any equivalent or similar concept of personal data or personal information under any applicable law; or (iii) any other information that can specifically identify an individual, such as name, address and social security number (“SSN”), together, in each case, with any other information that relates to an individual who has been so identified.

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Bank of America – Confidential © 2020 Bank of America Corporation Program Administrator. One or more individuals designated by you as our primary contact for the Card Accounts who is authorized to take actions necessary or appropriate to maintain the Card Accounts, including, without limitation, designating persons to receive Card Accounts, receiving communications from us related to the Card Accounts, requesting the closure of Card Accounts and otherwise communicating with us with respect to the Card Accounts.

Program Data. Any Software, Materials, data, technical assistance, training and related technical data, and any media in which any of the foregoing is contained.

Sanctions. Any sanctions administered or enforced by the United States Government (including the U.S. Department of the Treasury’s Office of Foreign Assets Control), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or any other relevant sanctions authority.

Software. Web-based applications accessed via a Website and/or the programs and data files provided by us for use on a computer in connection with the Services.

Subsidiary. Any entity in which more than 50% of the ownership interest is owned or controlled, directly or indirectly, by you. The term "Subsidiary" does not include affiliates or other entities in which 50% or less of the ownership interest is owned, directly or indirectly, by you.

Transaction. The purchase or reservation of goods or services or a Cash Advance made or facilitated by use of a Convenience Check or Card Account.

Unauthorized Use. Use of a Card Account, Card or Convenience Check by a person or entity (i) who is not your Cardholder, employee or agent, (ii) who does not have actual, implied or apparent authority to use the Card Account, Convenience Check or Card and (iii) whose use does not benefit you directly or indirectly.

User Documentation. Any written information we may provide to you, including information in electronic format, as amended from time to time, which contains detailed instructions regarding the use of a Service. Current User Documentation is available upon your request.

Website. Any internet website and/or online access channel for use in accessing the Services.

Workforce. Our employees with access to CPI.

2. OUR OBLIGATIONS

2.1 Card Accounts. We will open Card Accounts upon your request which Cardholders may use to conduct Transactions for your business.

All Transactions made on a Card Account are considered authorized by you unless we receive and have had a reasonable period of time to act upon written notice from you that the Cardholder is no longer authorized to use the Card, Convenience Checks or the Card Account.

Upon your request, we may also provide Convenience Checks with respect to your Card Accounts. At your request, we may also establish a Cardless Account. If you so request, we will provide to the Cardholder, at the address you or the Cardholder specifies, a Billing Statement reflecting the Cardholder’s use of the relevant Card Account. We may deny authorization of any Transaction if we suspect fraudulent activity or Unauthorized Use or for any other reason. Notwithstanding anything to the contrary in the “Limitations of Liability” section of this Agreement, we will not be liable for any failure to authorize a Transaction.

2.2 Qualifications. We are responsible only for performing the Services expressly provided for in this Agreement. We may contract with an outside vendor in performing the Services, however we will remain responsible for their performance of any services under this Agreement.

2.3 Compliance with law. We will provide the Services in a manner which is materially compliant with all laws to which we may be subject (including all AML/Sanctions Laws and Data Protection Laws). We represent and warrant to you on and as of each day on which we provide a Service to you that our performance of our obligations does not materially violate any law applicable to us or facilitate illegal Transactions in the United States.

2.4 OFAC. We will implement reasonable systemic protocols to decline attempted Transactions that would violate Sanctions, or that would result in a violation by any person (including any person participating in the Transaction, whether as advisor, investor or otherwise) of Sanctions. We will monitor activity on your Card Accounts for activity that may be expected to lend, contribute, or otherwise fund any activities of a business or person in countries subject to Sanctions and may review such activity with you as may be necessary.

2.5 External Fraud. We will assume the financial liability for Fraud, including Unauthorized Use, subject to Sections 9.2 and 11.3 if you or a Cardholder has not authorized or participated in the specific Transaction and you give us notice as soon as practicable, but not later than 60 days after you receive the Billing Statement on which the Transaction occurs or the Business Day after discovery of the Fraud, whichever is earlier.

2.6 Internal Fraud. We are not responsible for internal fraud or collusion, including Employee Misuse. However, we offer misuse insurance which may to help you with recovery from card networks.

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3. YOUR OBLIGATIONS

3.1 Use of accounts. You shall use, and shall ensure each Cardholder uses, each Card Account solely for your business purposes in accordance with the terms of the relevant Service.

3.2 Management of the Services. You must actively manage, monitor and review your program activity, Billing Statements, Transactions and Services. You agree to use commercially reasonable fraud prevention control tools as provided by us.

3.3 Obligation to pay. Except for Unauthorized Use that has been properly reported to us (when such report is necessary), you shall pay for each Transaction, regardless of its purpose or whether the Cardholder signed a sales draft or received a receipt. In addition, you shall pay our fees and charges as set forth in the schedule of charges currently in effect for you.

3.4 Status of Cardholders. You represent and warrant to us that each Cardholder is a current employee or agent of the Company. Each Cardholder will be acting as your agent in connection with the receipt of the Services by you. If a Cardholder ceases to be your employee or agent, or otherwise becomes ineligible to use a Card, you must immediately inform us and destroy or return to us as soon as practicable the Card allocated to that Cardholder.

3.5 Your ability to perform your obligations. You will promptly furnish such financial and other information as we request for the purpose of reviewing your ability to perform your obligations to us. You represent and warrant to us that, on the date of the Agreement and on each day that you use the Services or provide any information, all such information about your employees, agents and your company is true, accurate and complete.

3.6 Verification of details. You must check, and must ensure that each Cardholder checks, to ensure that the information embossed on each new Card or printed on each Convenience Check is correct, and you will contact us immediately if there is an error.

3.7 Change in Program Administrator. You acknowledge that the Program Administrator(s) is authorized to manage all changes to your Cardholder Accounts. You assume and accept all responsibility for the actions, authorized or unauthorized, of your Program Administrator. You must give us prompt written notice upon any Program Administrator being added, replaced or removed.

3.8 Security of your data. You are responsible for protecting and maintaining the security and confidentiality of your data and the data of your Cardholders (including any and all user IDs, passwords and card personal identification numbers (PINs) issued in connection with a Service), for ensuring that it is adequately backed-up and that no person makes such data available to any other person or for any unauthorized purpose. We are not responsible for your loss of your data or the data of your Cardholders that is not maintained on our or our vendors’ systems.

3.9 Compliance with law. You must comply, and you must ensure that your Cardholders and all Transactions comply, with all laws to which you, that Cardholder or that Transaction may be subject, including all AML/Sanctions Laws and Data Protection Laws. You must do all things and provide all information which we may request from you to allow us to comply with our obligations under any AML/Sanctions Laws, including (if necessary) providing us with any information required to establish and verify the identity and background of any Cardholder. You represent and warrant to us on and as of each day on which we provide a Service to you that your performance of your obligations does not and will not violate any law applicable to you or facilitate illegal transactions, including those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq.

3.10 OFAC Covenant. You covenant that you will not use or permit any Cardholder to use, any Card, Cardless Account, Cash Advance or Convenience Check to transact, lend, contribute, or otherwise make available funds to any Subsidiary, joint venture partner or other individual or entity (“Person”), to fund any activities of or business with any Person, in Cuba, Iran, North Korea, Sudan, Syria, or in any country or territory that, at the time of such funding, is the subject of any Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as advisor, investor or otherwise) of Sanctions.

3.11 Binding on Participants. If you are a Participant, you agree and acknowledge that the Company has executed the Agreement for and on behalf of you, and that by using the Services, you agree to be bound by all provisions of the Agreement and authorize the Company to take any and all actions on your behalf in respect of the Agreement, including entering into this Agreement on your behalf.

3.12 Approvals. In addition to any approvals you are required to obtain pursuant to Section 21.3, you must obtain any governmental or regulatory mandated approvals necessary for you to use the Services, including any labor relations related approvals.

3.13. Security over Real Property. Unless we agree with you in writing, we will not take real property as collateral for amounts you owe us.

4. CREDIT LIMITS

4.1 Credit limit. For each Service, we will establish one total credit limit for all your Card Accounts issued to the Company and all Participants.

The Company shall determine an individual credit limit for each Cardholder Account which is part of any of your Card Accounts issued to the Company and all Participants. The individual credit limits for each Cardholder Account, when aggregated, may exceed the total credit limit for all Card Accounts issued to the Company and all Participants. However, this will not increase the total credit limit. Upon your request and if approved by us, we may increase the total credit limit or any individual limit. We may, without prior notice, decrease the total credit limit or any individual limit in our reasonable discretion. We also may, at our discretion, delay in crediting payments received from you against your credit limit if you have only made a partial payment of amounts due or if your payment has not cleared.

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4.2 Transactions exceeding the credit limit. You agree not to incur obligations which would cause the total credit limit for all of your Card Accounts to be exceeded. We may make available online tools and standard reporting for you to monitor Cardholder activity. If you do exceed the total credit limit for all of your Card Accounts, we may refuse any Transactions on all of your Card Accounts. We also may require the entire balance owing on your most recent Billing Statement to be immediately due and payable before we allow for further use of your Card Accounts. If an individual Card limit is exceeded, we may (i) refuse any Transactions as applicable on that Cardholder Account that is individually billed, until a payment is made to reduce the balance below the individual Cardholder’s credit limit or, for centrally billed Cardholders, until you increase that Cardholder’s credit limit or wait until the next billing cycle for the account credit limit to refresh and/or (ii) charge you a fee as set out in the schedule of charges currently in effect for you.

5. TRANSACTIONS IN OTHER CURRENCIES

5.1 Currency conversion. If you make a Transaction in a currency other than U.S. dollars, Visa or MasterCard will convert the charge or credit into a U.S. dollar amount. The conversion rate on the processing date may differ from the rate on the date of your Transaction. The exchange rate used by Visa will either be (i) a rate selected by Visa from a range of rates available in wholesale currency markets for the applicable central processing date, which rate may differ from the rate Visa receives, or (ii) the government-mandated rate in effect for the central processing date. MasterCard will use an exchange rate of either (i) a wholesale market rate or (ii) a government-mandated rate.

5.2 International Transaction Fee We may add a fee to the U.S. dollar amount of any Transaction that is made in a foreign currency (the “International Transaction Fee”). The International Transaction Fee is set forth in the schedule of charges currently in effect for you and will be rounded up to the nearest penny, cent or centime (as applicable).

6. DISPUTES WITH MERCHANTS AND SUPPLIERS

6.1 Disputes with merchants and suppliers. We will have no liability for goods or services purchased using a Service, or for a merchant’s or supplier’s failure to honor purchases made with, or for a merchant’s or supplier’s failure to deliver goods or services purchased using a Service. If you have any questions, problems or disputes concerning the quality of any goods or services purchased using a Service, a purchase price discrepancy, warranty or other performance issues or any other purchase matter, you must contact the merchant or supplier directly. You may not rely on any claim or dispute concerning the purchase of goods or services using a Service to avoid your payment obligations under the Agreement.

Notwithstanding the foregoing, where we processes any request for a Transaction refund through a card network on your behalf, which for the avoidance of doubt shall be processed in accordance with the operating rules and regulations of such card network, you agree that in a dispute with a merchant or supplier, we will be subrogated to your rights and each Cardholder’s rights against the merchant or supplier and you will assign (and cause the Cardholder to assign) to us the right to assert a billing error against the merchant or supplier. You will, and will cause the Cardholder to, do whatever is necessary to enable us to exercise those rights. We may reverse from any Card Account any Transactions relating to the dispute.

6.2 Authorization for Transactions. A merchant or supplier may seek prior authorization from us before completing a Transaction. If you advise us in writing that you desire to prevent Transactions from merchants falling within certain categories we designate in our User Documentation, we will take reasonable steps to prevent authorization of Transactions from these types of merchants. However, we will not be liable to you if merchants or suppliers nonetheless accept a Card, Convenience Check or Card Account for other types of Transactions, or if authorization for a Transaction is not given. We may also refrain from authorizing a Transaction for any reason whatsoever in our reasonable discretion.

6.3 Forms of Consent. You need to consent to each Transaction (whether by a Cardholder giving consent or otherwise) so that we can verify that it is genuine. A Transaction can be consented to by:
i. using a Card with the relevant card PIN or a signature; ii. using the account number and other details requested; iii. presenting a Card to the supplier’s terminal if the Transaction is made using contactless technology; or iv. such other means as you and we may from time to time agree.

We may deem Transactions which have not been consented to in one of the above manners to be unauthorized and we may decline to process such Transactions. This is in addition to any other rights we have to decline Transactions.

7. CONVENIENCE CHECKS
If we provide Convenience Checks with regard to a Card Account, they may not be used to make payment on the Card Account. We may pay a Convenience Check and post its amount to the Card Account regardless of any restriction on payment, including a Convenience Check that is post-dated, that states it is void after a certain date or that states a maximum or minimum amount for which it may be written. Once paid, Convenience Checks will not be returned to you or the Cardholder.

If you wish to stop payment on a Convenience Check, you must call us at the customer service number shown on your Billing Statement and provide such information as we request or is required under the relevant User Documentation. We will stop payment if we receive your request on or before the Business Day before the Business Day on which we would otherwise pay the Convenience Check. The date on which we would pay a Convenience Check may be prior to the date it would post to your Card Account. A stop payment order will remain in effect for up to six months.

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8. CARDLESS ACCOUNTS; ACCOUNTS NOT IN NAME OF INDIVIDUAL We may, at your request, establish a Cardless Account or establish a Card Account with a designation which is not an actual individual, including, designation of a vehicle identification number, license number, department name or “Authorized Representative” on the Card Account. You may provide the number associated with the Cardless Account to your employees and agents.

9. STATEMENTS

9.1 Issue of statements. We will provide to the Program Administrator, or other person you designate in writing to us, a Billing Statement for centrally or corporate billed accounts which will identify each Transaction posted during the billing cycle and the date of the Transaction. The Billing Statement will also list any applicable fees and charges for a Service. For individually billed Cardholder Accounts, we will provide a copy of the Billing Statement covering the use of the relevant Cardholder Account to the appropriate Cardholder at the address which you or the Cardholder provides to us at no additional cost and we will not provide any Billing Statements for those accounts to the Program Administrator. The Program Administrator will have the ability in the online application tool to review and sort all Cardholder activity.

9.2 Review of statements. Once you receive a Billing Statement, you must review it and notify us by telephone (using the appropriate telephone number set out in the Billing Statement), electronic mail, or other method that may be agreed upon by you and us, of any Transaction appearing on that Billing Statement which you consider may have resulted from any Fraud, including Unauthorized Use. You must give us this notice as soon as practicable but in any event not later than 60 days after you receive the Billing Statement. If you opt to have individual statements sent to individual Cardholders, you must ensure that each relevant Cardholder complies with the provisions of this Section 9.2. Subject to the requirements of any applicable laws, if you do not (or if a relevant Cardholder does not) give us notice in accordance with this Section 9.2, we will not be liable for refunding any amounts relating to that Transaction.

9.3 Electronic disclosures. You agree that we may provide or make available Billing Statements and any other disclosures or information by electronic means, including by way of electronic mail or a Website.

10. PAYMENT OF CARD ACCOUNTS; SET-OFF

10.1 Payment of statement amount. You will pay to us the total amount shown as due on each Billing Statement on or before the Payment Due Date shown on the Billing Statement. Where we have agreed with you in writing to take payments from Cardholders you must ensure that the relevant Cardholder pays on your behalf. If we do not receive payment in full by the specified due date, in addition to our other rights, we may assess a late fee and finance charge as set forth in the schedule of charges currently in effect for you. You have no right to defer any payment due on any Card Account. For the avoidance of doubt, even if we have agreed to take payments from Cardholders, you will remain solely responsible for and we will collect from you for any amount due which is not paid by a Cardholder.

10.2 Service Fees and Charges. You will pay us each of the fees and charges we assess you, including the fees for each Service, as set out in the schedule of charges currently in effect for you, except as we agree otherwise in writing from time to time.

10.3 Electronic management information fees and charges. You will pay us for Software support in excess of that contemplated in Section 16 of this Agreement. The charges for such extra support will be specified by us before such charges are incurred or as otherwise agreed by you and us from time to time in writing.

10.4 Account identification. If you or any Cardholder makes any payment to us in connection with a Card Account, you must, or ensure that they must, at the same time provide us with either the account number or the Card number. We shall not be liable for any delay in crediting any such payment or recording any Transaction, or for failing to do so, where this information is not provided to us in accordance with this Section 10.4.

10.5 Payment method. Unless otherwise agreed by us, payments must be made using an Automated Clearing House (“ACH”) service. As specified by you, we may initiate ACH debits to any deposit account at any financial institution. If you arrange for direct payment by Cardholders, such an arrangement will not change your responsibilities under the Agreement, including your obligation for payment.

10.6 Set-off. Notwithstanding Section 10.8, you grant us a contractual right of set-off in and to all deposits or credit balances now or subsequently maintained with us or any of our affiliates or Subsidiaries. In addition to any other rights of set-off we may have, we may without consulting you set-off any amount you owe us for any recurring or on-going non-payment under the Agreement against such deposit or credit balance whether or not that deposit or credit balance is matured. In connection with this right, you authorize us to enter into an agreement with our affiliates obtaining their authorization to effect such a set-off.

10.7 Transactions outside normal processing hours. If we receive any payment from you or a Cardholder in respect of any statement amount outside our normal processing hours in any jurisdiction to which that payment relates, that payment shall be deemed to have been received by us on the next Business Day. We will provide you with a list of our normal processing hours upon your request.

10.8 Credit balances not permitted on a Card Account. You are not permitted to have a credit balance on any Card Account. If any such credit balance arises (for example, by a refund), then in addition to our rights of set-off, we may retain the credit balance in or towards prepayment of any amount you owe us in the future under the Agreement, or if the amount of the credit balance is material we may, at our option, pay it to you using any method mutually agreed upon between you and us. You also may request that we refund such credit balances to you.

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11. LOST OR STOLEN CARDS; UNAUTHORIZED USE

11.1 Unauthorized Use. We may refrain from authorizing any Transaction if:
i. we suspect that the Transaction is or might be fraudulent or unlawful or for the purpose of any fraudulent or unlawful activity; ii. we suspect that the Transaction constitutes or might constitute Unauthorized Use; or iii. to authorize that Transaction would cause us to breach any law (including any AML/Sanctions Laws by which we must abide).

11.2 Failure to authorize. Subject to applicable law, we will not be liable to you if we or any other party fails to authorize or declines any Transaction for any reason. If a Transaction is not authorized or declined, you may seek, and we will provide, reasonable assistance in investigating and resolving the declined or unauthorized Transaction.

11.3 Reporting a loss, theft or Unauthorized Use; assisting with investigations. If you become aware of any Notifiable Event, including actual or suspected loss or theft of a Card, Convenience Check or Card Account or any actual or suspected Fraud, including Unauthorized Use, you must notify us. You must ensure that, if any Cardholder or user of a Card Account becomes aware of any Notifiable Event, that person notifies us.

Any notice to be given by you, a Cardholder or a user of a Card Account must be given to us as soon as practicable but in any event no later than the Business Day after discovering the Notifiable Event, provided that if a Notifiable Event is discovered on a Billing Statement, Section

9.2 will apply. The notice must contain as much information relating to the Notifiable Event as the person giving the notice is able to provide.

Upon a Notifiable Event occurring, you must provide us, and you must ensure that each relevant Cardholder or a user of a Card Account provides us, with such information and assistance as we may request to: (i) investigate that Unauthorized Use; and (ii) (to the extent applicable or required by any relevant Data Protection Laws) communicate the fact of that Unauthorized Use to the relevant Cardholder.

If we receive notice and assistance in accordance with this Section 11.3, including obtaining any witness statement or similar written, signed statement which we may require from any relevant Cardholders or other users of a Service, then you will not be liable for Transactions resulting from the Notifiable Event. If we do not receive notice or assistance in accordance with this Section 11.3, we may not refund any amounts relating to that Unauthorized Use.

12. LICENSE TO USE YOUR MARKS
Upon your written request, we may place your trademark, tradename, service mark and/or designs (“Company’s Marks”) on Cards and collateral materials. You will provide the graphics to us in sufficient time to allow for review and approval by us and, if necessary, the respective card association. You grant us a non-exclusive license to use, during the term of theAgreement, Company’s Marks on the Cards and on other materials related to the Card Accounts. If, as you request, we place or amend your Company Marks on the cards or collateral materials, you must pay us in advance any agreed fees, and you agree that the indemnity under Section 23 (Protection from Third Parties) of this Agreement covers any claim that the use of any Company Marks infringes the intellectual property right of any third party.

13. EXTENSION OF CORPORATE CARD SERVICE TO AFFILIATES
Upon your request and submission of a Participant Account form, we may approve one or more affiliates of which you are majority owner for participation in a Service. Each participating affiliate will have the same rights and obligations as you except that no separate charge limit will be assigned. Your charge limit will apply to Transactions on all Card Accounts, including those of your participating affiliates.

You may terminate an affiliate’s participation by giving us written notice and a reasonable time to act on such notice. If an approved Participant is, or will no longer be, majority-owned by you, you agree to notify us immediately, and we may immediately terminate the Card Accounts of such Participant.

14. TERMINATION

14.1 Termination upon notice. We may terminate the Agreement or a Service, or withdraw or suspend any Card or Card Account, upon 60 calendar days' written notice to you, or such longer period as prescribed by applicable law. You may terminate the Agreement or a Service upon 30 calendar days' written notice to us.

14.2 Termination upon specific events. Notwithstanding Section 14.1, we may to the extent permitted by law terminate the Agreement or a Service in respect of you and/or any Participant, or withdraw or suspend any Card or Card Account, with immediate effect (in which case we may send you notice of the termination, withdrawal or suspension) if any of the following occurs with respect to you, a Participant or a Guarantor:
■ You fail to pay any amount pursuant to the Agreement as and when due (whether upon demand, at maturity or by acceleration); ■ You breach any other term or condition of the Agreement or any other agreement with us or any of our affiliates or subsidiaries, including any representation, warranty or failure to deliver information; ■ You enter or are placed into liquidation, insolvency, administration, receivership, administrative receivership, bankruptcy, reorganization, judicial management or any other similar procedure (other than in the context of a solvent re-structuring), or any step is taken to do so, or you cease to carry on all or a substantial part of your business or dispose of all or a substantial part of your assets;
■ You fail generally to pay your debts as they become due;

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Bank of America – Confidential © 2020 Bank of America Corporation ■ You initiate or enter into any composition or arrangement with your creditors; ■ You experience a material adverse change in your financial condition or your ability to perform your obligations under the Agreement;
■ You fail to pay or perform any other obligation, liability or indebtedness to any other party; ■ There is an entry of a judgment against you which we deem to be of a material nature; ■ You experience seizure or forfeiture of, or the issuance of any writ of possession, garnishment or attachment, or any turnover order for any property or assets;
■ You fail to comply with any material law or regulation, including any AML/Sanctions Laws.

14.3 Consequences of termination. Upon any termination of a Service or the Agreement as a whole for any reason set forth in section 14.2:
(i) the entire balance outstanding on all Card Accounts with respect to that Service or the Agreement as a whole (as applicable) shall, at our option, become immediately due and payable; otherwise your payment will be due in accordance with the agreed upon payment cycle including any grace period; and (ii) you will immediately destroy, and will instruct all Cardholders to immediately destroy, all Cards and Convenience Checks. Notwithstanding any termination, you will continue to be responsible for paying all Transactions on all of your Card Accounts. After termination, neither you nor any Cardholder may make any further Transactions on any Card Account. If, however, such Transactions are made, you will be liable for them.

14.4 Return/deletion of Materials and Software. If a Service you are using and/or the Agreement is terminated for any reason, you will do the following:
■ Stop using any Materials relating to that Service immediately; ■ If applicable, erase or delete any Software we have provided relating to the terminated Service to the extent it is stored in your systems; and
■ At our option, either return to us or destroy all Materials relating to that Service and certify to us that you have done so.

These obligations will continue after a Service you are using has been terminated.

15. APPLICATIONS LICENSE

15.1 Application of this section. The terms of this Section govern the provision and use of the Applications. Your, and your Cardholders’, use of the Applications and any related services means you have read, acknowledge and agree to the terms and the conditions of this Section.

You will ensure that your Cardholders comply with these provisions. We are entitled to grant you licenses (including to your affiliates and Subsidiaries) to access and use the Applications.

15.2 License. The license granted under this Section is a non-transferable, nonexclusive, worldwide, revocable, limited license to access and use the Applications and any related services in accordance with the terms of this Section, in a manner intended for authorized use, and to the extent authorized by us (the “License”). Software provided by us or a third party may be subject to separate license terms, including “clickwrap” terms that you will be required to agree to in order to utilize such services. The License shall terminate upon the occurrence of any one of the following events: (i) the Agreement is terminated for any reason; or (ii) this License is terminated pursuant to Section 15.11 below.

Additionally, unless such use is promptly stopped after we have notified you of it, we reserve the right to revoke the License granted hereunder if you or your Cardholders use the Applications and any related services in an illegal or unauthorized manner, including in contravention of these terms. We reserve the right to suspend your and your Cardholders’ access to, and use of, the Applications upon prior written notice of a violation of any of these terms. In addition, we may suspend your access to, and/or use of, the Applications immediately without notice where such action may be required to prevent interference with or disruption to services to our other customers, to protect the integrity of our systems, or as may be required by law or regulation.

15.3 Disclaimers. THE APPLICATIONS, RELATED SERVICES, AND INFORMATION PROVIDED PURSUANT TO THE APPLICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE AND OUR THIRD PARTY PROVIDERS HEREBY EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES.

15.4 Modifications. We may modify, withdraw or suspend the Applications or any part of it without notice at any time.

15.5 Protection of Software. The Software and all copyright, patent, trademark, trade secret and other rights in them are and will remain the exclusive property of us or our licensors. All such intellectual property in the Software and the related services is protected by applicable copyright, patent, trademark or other intellectual property law. The entire content of the Software is subject to our and our third party providers’ intellectual property rights, including copyright with all rights reserved. You acknowledge that the License does not convey or grant any intellectual property or other proprietary right to you, except for the limited license granted hereunder. You will follow our instructions concerning access to the Software through our third party vendor platforms. You will ensure that all Participants and Cardholders comply with instructions provided by us and are responsible for any and all acts and omissions of Participants and Cardholders. You further agree not to engage, and will ensure that your employees and agents do not engage, in unacceptable use of the Applications, including the following activities: (i) creating a false identity or otherwise attempting to mislead any person as to your identity or the origin of any communication transmitted through the Applications; (ii) using accounts, account numbers, or attempting to authorize transactions through accounts for which you do not have full authority to conduct such activities; (iii) disseminating or transmitting any materials or messages that do not pertain to the intended use of the Applications or that contain anything that is obscene, defamatory, harassing, offensive, or malicious; (iv) disseminating or transmitting files, graphics, software, or other material that actually or potentially infringes the intellectual property right of any person or entity; or (v) interfering with, disrupting, or attempting to gain unauthorized access to information or other accounts through the Applications hosted by us or our third

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Bank of America – Confidential © 2020 Bank of America Corporation party vendors and made accessible to you. We may rely on the instructions of any Authorized Users and we will have no liability following any such instruction. You are responsible for all actions taken by Authorized Users with regard to the Applications.

15.6 Accessibility - Your computer systems. Subject to the terms of this Section 15, we will make the Applications available over either the internet or through an intranet site to allow you to electronically and remotely access the Applications. You will provide at your own expense, all necessary telephone lines, internet connections, equipment, software (including a compatible web browser), and services for you to effectively access the Applications. Your access to the Applications will be controlled by a user name and password, as well as the authorization approved by your Program Administrator.

15.7 Infringement Protection. Notwithstanding Section 22 of this Agreement and except as otherwise provided in this Agreement, we will defend at our own expense or settle any action brought against you to the extent it is based your use of the Applications and the Software including, our entitlement to allow your use of the Applications or your use of the Applications infringe any copyright, patent, trade secret or trademark of any third party in the jurisdictions where you are using the Applications, and we will pay all actual and direct costs and damages finally awarded in any such action. Our obligations under this protection are subject to (i) prompt notice from you of any such claim or action; (ii) your not having made any admission of liability or agreed to any settlement or compromise; (iii) your providing to us, in a prompt and timely manner, the documents, information and assistance we reasonably request; (iv) our having sole control of defending such claim or action; (v) your having used the current version of the Applications, as provided to you by us, in compliance with this Agreement; (vi) your using the Applications only in the manner for which the Applications were designed; (vii) your not modifying the Applications; (viii) your not incorporating the Applications with products not approved by us; and (ix) the claim or action is not due to your negligence or willful misconduct. You acknowledge and agree that our obligations under this infringement protection are our only obligations to you with respect to any infringement claim in connection with your use of the Applications.

15.8 Software updates. We may provide upgrades or new releases of Software which we make generally available to our other customers to whom we license the same Software, which will be deemed part of the Applications once we have delivered or made it accessible through our third party vendors to you.

15.9 Training. At your request, we will use commercially reasonable efforts to train persons to use the Software, but we will not bear any responsibility for such training. You will be deemed to have accepted the Software upon its installation, once it is made available to you, or on your use of the Software.

15.10 Software problems. You will inform us of all errors, difficulties or other problems with the Software of which you become aware. We will make all reasonable efforts to promptly fix or promptly provide workarounds for any material errors reported to us. We may request your reasonable cooperation in resolving any such errors, difficulties or other problems by providing us an overview of input, output and all other data we may reasonably request in order to reproduce operating conditions similar to those present when such errors, difficulties or other problems were discovered.

15.11 Termination of license. Your license to use the Applications will terminate automatically if you breach a term of this Section 15. If, for whatever reason, we cease to be entitled or permitted to license any Applications to you, the License shall immediately terminate. Where possible we shall provide you with reasonable prior notice of this. In addition, if you breach any of your confidentiality obligations with respect to the Applications, we may seek any and all remedies provided by law or equity.

15.12 Limitations. You acknowledge that the Applications have not been produced to meet your specific requirements and have not been tested in every possible combination and operating environment. You agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to our provision to you or your use of any Software and/or Materials.

16. CHANGES TO A SERVICE

16.1 Requests for changes. You may request us at any time to change the processing instructions for a Service. We are not obligated to implement any requested changes until we have had a reasonable opportunity to act upon them. In making changes, we are entitled to rely on requests purporting to be from you. For certain changes, we may require that your requests be in writing, in a form and manner acceptable to us, or be from an authorized person you designate. In addition, certain requests for changes may be subject to our approval.

16.2 Our right to make changes. If due to events outside of our control (including regulatory, card network or market conditions), we may change, add or delete any of the terms of the Agreement (including the schedule of charges currently in effect for you) and/or any terms, conditions and/or pricing and/or rebates applicable to a Service by providing 60 days' notice to you in writing or by electronic means. All such changes will be effective as of the date set forth in such notice. Your continued use of or failure to terminate the Service after the effective date of the change will indicate your agreement to the change. Any other changes shall be mutually agreed upon in writing between the parties.

16.3 Right to terminate. If you disagree with our proposed changes, you may terminate the Agreement in accordance with its terms by providing us with 30 days’ advance written notice as set out in Section 14.1 at no additional cost.

If you serve notice on us under this Section 16.3 at least 30 days before our proposed changes are due to come into effect, then unless required by law our proposed changes will not take effect and the Agreement will continue unamended until it terminates pursuant to your notice.

If you serve notice on us under this Section 16.3 less than 30 days before our proposed changes are due to come into effect, then we are entitled (in our absolute discretion) to choose that:

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Bank of America – Confidential © 2020 Bank of America Corporation i. our proposed changes will not apply to the Agreement and the Agreement will terminate on the date on which those changes would otherwise have come into effect (as long as that date is no later than 30 days after the date of your notice); or ii. our proposed changes will not apply to the Agreement and the Agreement will terminate 30 days after the date of your notice; or
iii. our proposed changes will apply to the Agreement with effect from the date on which they are due to come into effect and the Agreement will terminate 30 days after the date of your notice, but, if as a result of the changes you incur any additional fee, charge, expense or other liability, we will promptly apply a corresponding credit to your account with us so as to put you in the same position in which you would have been had the proposed changes never taken effect.

17. ANCILLARY SERVICES

17.1 Adding services. Upon your request and our approval we may provide additional services to you and such Participants as we may agree from time to time. Such services may be subject to additional terms and conditions.

17.2 Receipts imaging service. You may elect to use our receipts imaging service whereby you send us copies of your Transaction receipts, which we will electronically store for you (the “Receipts Imaging Service”). It is your obligation to send us legible copies of your Transaction receipts. You acknowledge and agree that we will not review the Transaction receipts and that you are responsible for retaining the original receipts. Notwithstanding Section 22, we will not be liable for damages if the images are illegible or blank or for failure to provide copies by a given time or for failure to provide copies we are not reasonably able to provide. Images will be made available to you by website at such times as may be set forth in the applicable User Documentation or as otherwise established by us. There is no charge for this Service. We may delete any images we hold for you after seven (7) years from our receipt of the relevant Transaction receipt without notice to you. Upon termination of this Agreement you will no longer have access to any images we hold for you, and we may delete all images we hold for you without notice.

17.3 File feeds to third parties. You may request us to send certain program data to your third party servicers. We will do so on the basis that you have reviewed and accepted our standard file layout and you agree that any file transfer shall only be in such standard file layout.

You agree to indemnify, defend and hold us, our successors and permitted assigns, our affiliates and their respective directors, officers, agents and employees harmless from and against every claim, demand, proceeding or suit, and from every liability, loss, damage, cost, charge, expense (including any actions or expenditures required by law or regulations, reasonable attorney, auditor and other fees, and costs) whether or not material, liquidated, contingent or prospective in nature, arising out of, resulting from or related to our compliance with your data transfer request.

17.4 Fee Increases. You acknowledge and agree that any changes to the services which you request and use pursuant to this Agreement may increase the fees which you are required to pay to us in accordance with Section 10 of this Agreement.

18. ADDITIONAL COSTS AND TAXES

18.1 Relevant taxes. You and we agree that the issuance of any Card Account to you or any Card to a Cardholder or any other person pursuant to the Agreement shall be deemed exclusive of any applicable value added tax, any tax or duty that applies or is levied on the issue of any Card, or any similar tax, levy, duty or impost (a "Relevant Tax") and that, where any Relevant Tax is levied on the issue of any Card or Card Account (or on any other Service or product provided by us under or pursuant to the Agreement), we may issue an appropriate invoice for the Relevant Tax addressed to you, and you must promptly pay to us the amount specified in that invoice.

18.2 Other duties and taxes. Where any tax, levy, duty or impost of any kind is applied or levied on the issue or import of any Card into any territory (an "Import Tax"), you must promptly indemnify, keep us indemnified and hold us harmless in full against and for the amount of the Import Tax applied or levied. Where any tax, levy, duty or impost of any kind is applied or levied on the execution, delivery or performance of the Agreement (a "Contract Tax"), you must promptly indemnify and keep us indemnified and hold us harmless in full against and for the amount of the Contract Tax applied or levied.

18.3 Withholding tax. You may be required to make withholding tax payments or other deductions on account of tax from any amounts which you are required to pay to us under the Agreement (a “Withholding Deduction”). Where any individual Cardholder or any individual who holds a Cardless Account makes any payment to us under the Agreement, that person may also be required to make a Withholding Deduction. You must ensure that you (or the relevant Cardholder or other relevant individual) make all Withholding Deductions where required to do so. You must also inform all individual Cardholders and all persons holding a Cardless Account who use or may use a Service of the circumstances in which they must make a Withholding Deduction. You must indemnify us, keep us indemnified and hold us harmless against all losses, costs, expenses and damages which we incur or are reasonably likely to incur as a result of you, any individual Cardholder and/or any other relevant individual failing to make any Withholding Deduction when required.

18.4 Gross-up. If any sum payable to us under the Agreement is subject to any tax, impost, duty, levy, deduction, set-off, counterclaim, contribution or withholding of any nature whatsoever (wherever in the world imposed), including any and all related penalties, charges and interest (in each case a “Tax Deduction”), the amount of the payment due shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

19. COMMUNICATIONS; NOTICES

19.1 Giving notices. Any written notice or other written communication to be given under the terms of this Agreement will be sent to us at the address we specify in writing. Notices are effective upon receipt, except as otherwise provided in this Agreement or any Materials. If you are a Participant, you agree and acknowledge that any notice we provide to the Company shall be deemed to be given to you.

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19.2 Monitoring of phone calls. You agree that we may electronically monitor and/or record any telephone or other electronic communications (whether by telephone, short message service (SMS) message, multimedia messaging service (MMS) message or any other form of telephonic text message, electronic mail or otherwise) with you in those jurisdictions which permit that practice. If our records about any such communication are different from yours, our records are presumed to be correct, but such presumption may be rebutted by you.

19.3 E-mail Communications. If you choose to use unencrypted electronic mail to initiate payment requests or other instructions or otherwise communicate with us, your use of such electronic mail with respect to a Service will be subject to the terms and conditions of this Agreement and will comply with the applicable User Documentation. In addition, you agree to bear the risk that such electronic mail may be corrupted, modified, garbled or hacked or its confidentiality may be breached by a third party and the risk that we will rely on such mail, which appears to be from you but which is unauthorized, and that such reliance may result in a loss. In addition, you agree that we may rely on the integrity of facsimile transmissions that you send us, and you agree to bear the risk that the information we receive differs from that sent to us, and that such reliance may result in a loss. In the event that an electronic transmission or facsimile transmission is unclear or if we become aware that it is not an authorized communication from you, we will not act on such transmission and will contact you to clarify any intended content of such transmission.

20. CONFIDENTIALITY AND MATERIALS

20.1 General. We acknowledge that information we obtain from you in connection with a Service we provide to you under the terms of the Agreement may be Confidential Information. You acknowledge that the Agreement, our pricing information, and the Materials shall be considered to be our Confidential Information. You also acknowledge our claim to proprietary rights in the Materials and our Confidential Information and that the Materials and our Confidential Information constitutes our “trade secrets” or trade secrets of our licensors or vendors.

20.2 Restrictions. In respect of a party’s Confidential Information, the other party will:
i. Safeguard the Confidential Information at all times; ii. Establish and maintain procedures to assure the confidentiality of the Confidential Information and any password or code; iii. Use the Confidential Information only for the purposes for which we provide them; and iv. Notify the other promptly by telephone, confirmed in writing, if any Confidential Information is lost or its confidentiality is compromised.

Neither party will, nor will allow anyone else to, do any of the following without the other party’s prior consent:
i. Disclose any Confidential Information of the other party to any person or entity, except to its employees and agents with a need to know the Confidential Information.
ii. Make any copies, in whole or in part, of Confidential Information of the other party in whatever form or medium (electronic, printed or otherwise) in which they may exist from time to time, except as provided in this Agreement. iii. Translate, reverse engineer, disassemble or decompile any Software or security devices of the other party.

20.3 Use of the Materials. You have sole responsibility for the custody, control and use of all Materials. You must ensure that no individual will be allowed to initiate a request or other instruction contemplated in the Agreement or to have access to any Materials without proper supervision and strict security controls to ensure that the Materials are only used in accordance with this Agreement. If the Service requires use of user identification codes or passwords, we will be entitled to rely on the correct user identification codes and passwords, as described in the relevant User Documentation and shall not be responsible for any loss resulting from our correct use of such data.

20.4 Exceptions. This section does not limit either your or our ability to disclose information (i) that the other party has approved by prior writing for disclosure; (ii) that is disclosed to its professional advisors or auditors; (iii) that becomes public other than through a breach of these confidentiality obligations; (iv) that was in its possession or available to it from a third party prior to its receipt of it in connection with a Service; (v) which is obtained by it from a third party who is not known by it to be bound by a confidentiality agreement with respect to that information; (vi) as required or requested by any securities exchange or regulatory body to which you or we are subject or submits, or (vii) as otherwise required to be disclosed by law or by legal or governmental process. In addition, either party may disclose to its offices, affiliates, officers, employees and agents (and those offices, affiliates, officers, employees and agents may disclose) such information as permitted under this Section or to otherwise carry out its duties or exercise its rights under the Agreement. This section also does not limit our ability or that of our affiliates to access and use transaction data related to a Service provided to you in connection with the management of our or their business.

20.5 No Use of Name. Neither you nor we will use the other’s name or refer to the other directly or indirectly in any solicitation, marketing material, advertisement, news release or other release to any publication without receiving the other’s specific prior written approval for each such use or release, except that we may use your name as a reference in service proposals if we obtain your prior written approval for use.

20.6 Damages insufficient remedy. You and we acknowledge that damages may not be an adequate remedy to protect the other party against breach of this Section 20 of the Agreement. You and we agree that the other party may seek injunctive or other equitable relief in respect of a breach of Section 20 of the Agreement.

20.7 Survival. The obligations enumerated in this Section 20 continue after the Service you are using and/or the Agreement is terminated.

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Bank of America – Confidential © 2020 Bank of America Corporation

21. INFORMATION SECURITY/DATA PROTECTION

21.1 Overall Data Security Regulations. As a financial institution, we are required to comply with the information security standards established under national and international legal and regulatory requirements applicable to us. We are evaluated regularly for compliance with these obligations by various US and international regulators as applicable.

21.2 Security and Confidentiality. We maintain an Information Security Policy that:
i. contains appropriate administrative, technical and physical safeguards designed to protect against Information Security Events;
ii. conforms as required to the requirements of applicable Data Protection Laws; and iii. sets forth policies and procedures that are designed to be consistent with, to the extent applicable to the Services, PCI-DSS standards; the card networks rules and regulations; and Financial Services Industry Best Practices.

21.3 Data Protection. You hereby represent and warrant to us now and on each day on which we provide a Service to you that you are in compliance with all Data Protection Laws and where required under such Data Protection Laws you will maintain at all times during the term of the Agreement a valid registration or authorization with any applicable Data Protection Authority. You shall inform us of any requirement of which you are aware which would require us to be registered or authorized with any applicable Data Protection Authority in order to provide the Services to you. You shall obtain on your and, as applicable, our behalf all necessary and valid consents, including Cardholder consents, and provide all necessary data protection notices in order for us to process the Personal Data using such forms as we may prescribe for the purposes described in the Agreement, and to disclose the Personal Data to the types of recipients described in the Agreement, including if applicable where the recipients are located outside of the EEA . You shall retain, and upon request provide us with, copies of such notices and consents. With regard to our processing of Personal Data, we will comply with our obligations as a financial institution as set out in Section

21.1 and all applicable Data Protections Laws.

We may process Personal Data for the following purposes:
i. to provide and manage the Services;
ii. to help monitor, assess and carry out statistical product analysis and development; iii. to develop for our own use internal data on the types of clients and the markets we service; iv. to perform system testing and training;
v. to manage our business;
vi. as part of any internal or external audit or compliance review that we or any of our affiliates may undertake; vii. to help prevent crime, fraud and terrorism; and
viii. to comply with card networks rules and all applicable laws and other legal and regulatory requirements.

We will never use Personal Data for direct marketing to Cardholders.

You agree that we may disclose Personal Data to:
i. our affiliates, agents, auditors and service providers; ii. card networks and fraud prevention agencies;
iii. to any other person if legally required, including to law enforcement agencies, authorities, regulators and courts; and iv. any other person to whom we may transfer or intend to transfer, assign or sell any of our rights or obligations under the Agreement.

Any disclosures of Personal Data that we make will be made in compliance with applicable Data Protection Laws.

Where we are deemed to be processing Personal Data on your behalf, we agree to the following:
i. We will process the Personal Data only as required for the purposes providing the Services or as otherwise set out in the Agreement. We will only act on your instructions in relation to the processing of the Personal Data in accordance with the terms of the Agreement. You are responsible for providing us with any relevant instructions concerning the Processing of Personal Data in connection with Services.
ii. During the term of the Agreement, we take appropriate technical and organizational measures to protect the Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against other unlawful forms of processing having regard to the state of technological developments and the cost of implementing those measures, so as to ensure a level of security appropriate to the harm that may result from breach of those measures and the nature of the Personal Data to be protected. In addition, we will ensure that our staff processing Personal Data hereunder keep any Personal Data strictly confidential and not use such Personal Data for any other purposes other than for the provision of Services to you or as otherwise set out in the Agreement.

You acknowledge and agree that data processing related to a Service and your Card Accounts may take place in countries other than those where you and your accounts with us are located. You further understand that information concerning your relationship with us may be available on our electronic data system both for information management purposes and in order to enable you to benefit from our electronic banking services. You understand and agree that, as a result, your banking relationship information may be available to some of our officers outside the country or countries where you and your accounts are located. You authorize us to transmit your banking relationship information across national borders, notwithstanding the banking secrecy laws of any of the countries involved, as necessary or appropriate to provide a Service.

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Bank of America – Confidential © 2020 Bank of America Corporation

21.4 Security Policy. Our Information Security Policy has been approved by our management and is published and communicated to our Workforce. We have procedures designed to ensure that our Extended Workforce are subject to similar policies and processes. We conduct periodic risk assessments to identify and assess reasonably foreseeable internal and external risks to the security, confidentiality and integrity of electronic, paper and other records containing CPI. We require our Extended Workforce to have a similar risk assessment process. The remainder of this Section 21 sets out the key aspects of our Information Security Policy.

21.5 Organizational Security. All information is stored in the United States for programs in the United States and Canada. Such information may be accessed by our Workforce and any Extended Workforce from locations within or outside the United States. Our Information Security Policy applies to all such access. We include, as part of our agreements with any Extended Workforce that has access to CPI, provisions that are consistent with those set out in this Section 21.

21.6 Human Resources Security. We take reasonable steps to ensure that our Workforce is aware of our obligations in the provisions of the Services and Applicable Data Protection Laws, including that any unauthorized processing or disclosure of the CPI may lead to disciplinary action under their contract of employment or other contractual arrangements. Prior to receiving access to CPI, the Workforce and any Extended Workforce receive appropriate security awareness training and recurring security awareness training at appropriate intervals. The access rights of our Workforce with access to Information Processing System(s) or media containing CPI are removed upon termination of their employment, contract or agreement, or adjusted upon change of job function in accordance with the Information Security Policy.

21.7 Physical and Environmental Security. We protect all areas that contain Information Processing System(s) or media containing CPI by the use of security controls deemed appropriate by us.

21.8 Communications and Operations Management. We use detection, prevention, and recovery controls which are consistent with Financial Services Industry Best Practices to protect against malicious software and attacks, and train our Workforce on the prevention and detection of malicious software and attacks. We dispose of any paper, electronic or other record containing CPI using all reasonable steps to destroy (based on our determination of the sensitivity of the information) the CPI. To protect the confidentiality and integrity of CPI in transit, we use encryption tools that are consistent with Financial Services Industry Best Practices, to encrypt records and files containing CPI that we:
(i) transmit or send wirelessly across public networks; (ii) store on our laptops; (iii) where technically practicable, store on allowed portable devices; and (iv) store on any device that we authorize to be transported outside of our physical or logical controls. We use appropriate measures to safeguard the security and confidentiality of all encryption keys associated with encrypted CPI.

21.9 Access Control. To protect CPI from the risks inherent in mobile computing and remote access, we perform a risk assessment which, at a minimum, is designed to identify and mitigate risks to CPI from mobile computing and remote access, maintain a policy and procedures for managing mobile computing and remote access, and use security controls that are consistent with Financial Services Industry Best Practices to manage authentication of mobile and remote users.

21.10 Information Systems Acquisition, Development and Maintenance. To protect Information Processing System(s) and system files containing CPI, we restrict access to source code to authorized users whom we have determined have a need to know such CPI in the performance of their duties.

To protect Information Processing System(s) and system files containing CPI, we:
i. Use a change control process which is consistent with Financial Services Industry Best Practices to implement Information Processing System(s) changes; and
ii. Use security controls which are consistent with Financial Services Industry Best Practices.

21.11 Information Security Event Management. We maintain an incident response plan that addresses handling of Information Security Events. In accordance with such incident response plan, we will, to the extent not prohibited by law enforcement:
i. Provide you prompt, but in no event later than (2) Business Days of becoming aware thereof, notice of any Information Security Event documented and verified by us as part of our standard incident response process that involves, or which we reasonably believe involves, the unauthorized access, use or disclosure of your CPI. ii. Such notice shall, to the extent we are legally allowed, summarize in reasonable detail the Information Security Event and the corrective action taken or to be taken by us, if known at that time. We will promptly take all corrective action deemed necessary or appropriate by us. This includes responsibility and associated expenses for: (i) to the extent caused by the Bank or otherwise covered by the Bank’s insurance, damages of any nature arising out of such Information Security Event, including without limitation damages to the individual Cardholders (i.e. identity theft); (ii) informing all affected individuals if applicable laws require notification to such individuals; (iii) reissuance of credit cards to all affected individuals; and (iv) credit monitoring services for one year for all affected individuals.

21.12 Business Continuity Management. In order to protect the confidentiality and availability of CPI, we maintain a business continuity management program that is consistent with Financial Services Industry Best Practices which we update and test at planned intervals and as required.

21.13 Security Assessments. We permit your representatives to perform one on-site or written assessment of the security controls used at our data processing and business facilities. Such assessments will be performed during regular business hours, at a date and time agreed to by both parties, and will not require access to Information Processing System(s). Such assessments will be subject to our security policies, procedures, and restrictions, including restrictions on access to data centers, the ability to perform hands-on testing, and copying of certain materials.

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Bank of America – Confidential © 2020 Bank of America Corporation We scan internal and external facing Information Processing System(s) with applicable industry standard security vulnerability scanning software (including network, server, application and database scanning tools) at a minimum once per month and perform mitigations that we deem appropriate to address issues identified.

We perform a comprehensive application penetration test and security evaluation of all websites used to store, access, or process CPI prior to use and at least annually thereafter.

21.14 De-identification of Personal Data Used in Non-Production Environments. We perform De-identification of all Personal Data prior to storing, accessing, or processing the information in environments other than in our production environments or those of our Extended Workforce, provided that we do not do so if:
i. The security controls used in the environment are equivalent to the security controls used in the production environment. ii. De-identification would interfere with the resolution of a current production failure. iii. De-identification would interfere with an atypical, short-term, non-production activity (e.g., near-production final testing) where De-identification would distort the results of the activity; or iv. De-Identification would interfere with our legal or regulatory obligations.

22. LIMITATION OF LIABILITY

22.1 Indirect and other loss. Subject to the remaining provisions of this Section 22, we are liable to you only for actual damages incurred as a direct result of our failure to exercise reasonable care in providing a service. In no event will either party be liable for any indirect, consequential or punitive loss, damage, cost or expense of any nature. In addition, to the extent permitted by applicable law, in no event shall either party be liable for any economic loss or damage, expense and loss of business, profits or revenue, goodwill and anticipated savings, loss of or corruption to the other party’s data, loss of operation time or loss of contracts, even if advised of the possibility of such loss, damage, cost or expense.

22.2 Failure to authorize. You acknowledge that we shall have no obligation or liability to you or any Cardholder where:
i. any third party fails to honor any payment or transaction requested in connection with a Card, Card Account or Convenience Check (if applicable); or
ii. we refuse or fail to authorize the use of any Card, Card Account or Convenience Check (if applicable).

22.3 Acts and omissions. Neither party will be responsible for the acts or omissions of the other’s officers, employees or agents (including but not limited to the amount, accuracy, timeliness or authorization of any instructions or information received). We will not be responsible for the acts or omissions of any other person or entity, including any clearing-house, card network or processor, any U.S. Federal Reserve Bank or any other country's central bank, any other financial institution or any supplier (except for our suppliers providing the Services under this Agreement), and no such person or entity will be deemed our agent.

22.4 Subsidiaries and other persons. If you permit any Subsidiary or other person to access one of our Service installations on your premises through use of a remote-access software package, we will not be responsible or liable for such Subsidiary or person’s use or misuse of our Service or access to accounts owned by you and for which you did not authorize that Subsidiary or person to have access via your installation. We may and will treat all instructions and information received by us through this arrangement as provided by and for the benefit of you and subject to all our rights under this Agreement with respect to a Service.

22.5 Force majeure. Neither you nor we will be liable for and will be excused from any failure or delay in performing our respective obligations for a Service if such failure or delay is caused by circumstances beyond the control of the other party, including any natural disaster (such as earthquakes or floods), emergency conditions (such as war, riot, fire, theft or labor dispute), legal constraint or governmental action or inaction, or for the act, omission, negligence or fault of the other.

22.6 Compliance with law. Neither party will be liable for any failure to act on its part if such party reasonably believed that its action would have violated any law, rule or regulation.

23. PROTECTION FROM THIRD PARTIES
You will indemnify us, keep us indemnified and hold us harmless from and against any and all liabilities, claims, costs, expenses and damages of any nature (including legal expenses) arising out of or relating to disputes or legal actions by parties other than you and us concerning a Service, including your negligence or willful misconduct. The obligations contained in the preceding sentence will continue after the Service you are using and/or the Agreement is terminated for claims that arise based on events occurring during the use of the Services. This Section 23 does not apply to any cost or damage attributable to our gross negligence or intentional misconduct.

24. GOVERNING LAW
The Agreement and the Services are governed by the United States laws respecting national banking associations and, to the extent not covered by those laws, by the laws of the State of North Carolina, without reference to that state’s principles of conflicts of law, regardless of where you reside or where a Cardholder resides or uses a Card Account.

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Bank of America – Confidential © 2020 Bank of America Corporation

25. RESOLUTION OF DISPUTES
Any dispute or controversy concerning your use of a Service or the Agreement will be decided by binding arbitration conducted in the United States of America (except as you and we expressly agree otherwise) in accordance with the United States Arbitration Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the American Arbitration Association. Under these procedures, the dispute is submitted to a neutral person for determination in place of a trial before a judge or jury. Judgment upon the award made by the arbitrator may be entered in any court having jurisdiction. Either you or we may exercise self-help remedies or obtain provisional or ancillary remedies from a court. You or we may exercise or obtain these remedies at any time, even while the arbitration or trial by a judge is pending. By exercising or obtaining any such remedies, neither you nor we waive the right to request that a dispute or controversy be decided by arbitration or trial by a judge.

26. SEVERABILITY
If any provision of the Agreement or its application to any person or set of circumstances is determined to be invalid, unlawful, void or unenforceable to any extent, the remaining provisions of the Agreement and their application to any other persons or circumstances shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

27. WAIVER
No delay or failure to exercise any right or remedy under the Agreement shall be deemed a waiver of such right or remedy. No waiver of a single breach or default under the Agreement shall be a waiver of any other breach or default. Any waiver under the Agreement must be in writing.

28. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant to us now and on each day on which we provide a Service to you that:
(i) you are a body corporate acting within the scope of your ordinary course of business and you are not a "consumer" for the purposes of any consumer credit legislation, or regulatory guidance or codes of conduct applicable to consumers (and, if you believe that you have or may become a "consumer" for any of those purposes, you will notify us immediately of that fact). Further, you acknowledge that you will not be treated as a consumer for purposes of the Agreement, and laws and regulations relating to consumer protection shall not apply;
(ii) the Agreement and its provisions constitute and create legal, valid and binding obligations on you which are enforceable in accordance with their terms;
(iii) your performance of your obligations will not violate any law applicable to you or facilitate any unlawful transactions, for example those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq; (iv) you are in compliance with all AML/Sanctions Laws and are not aware of any breach by you or your Cardholders of any such laws; (v) the debiting of any account as provided in the Agreement is not inconsistent with any restriction on the use of that account; (vi) you have obtained all approvals and authorizations required to enable you to enter into, deliver and perform the Agreement and the transactions contemplated under it, including but not limited to any authorizations required from any applicable third party to allow you to transfer funds and access information from that party’s account; (vii) there are no bona fide proceedings, tax claims or disputes pending or threatened against you in respect of which, if judgment is given against you, would materially affect your financial condition or ability to pay us under the terms of this Agreement; (viii) if you are a Participant, you have authorized the Company to take any and all actions on your behalf related to the Agreement and any Services you receive, including binding you to the terms of this Agreement; and (ix) the person executing the Agreement has full authority, permission and approval to execute and bind the Company and Participants.

You will not dispute such authority, permission and approval regardless of whether you have provided board resolutions or similar documentation to us.

29. ASSIGNMENT
You may not assign the Agreement, or transfer any right or delegate any duty or performance under the Agreement, without our prior written consent, which shall not be unreasonably withheld. Any purported assignment by you of rights or delegation by you of obligations contrary to the provisions of the Agreement shall be void. We may assign our rights and delegate our obligations to a third party. If we do so, we will provide notice to you.

30. AGREEMENT

30.1 Entire agreement. The Agreement and the schedule of charges in effect for you, as amended from time to time, constitute and represent the entire agreement between you and us regarding a Service we provide to you anywhere in the world and supersede and extinguish all prior agreements, understandings, representations, warranties and arrangements of any nature (including requests for proposals and other sales material), whether oral or written, between the parties relating to a Service. The Agreement controls in the event of any conflict between it and any relevant User Documentation or any other document.

30.2 Successors and assigns. The Agreement shall be binding upon and inure to your and our benefit and to the benefit of your and our respective successors and permitted assigns.

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Bank of America – Confidential © 2020 Bank of America Corporation

30.3 Third parties. Except for any person or entity to whom this Agreement provides any express indemnity or covenant, you and we do not intend that the Agreement shall confer any right or benefit on any person or entity who is not a party to the Agreement (including any right or requirement to consent to any variation, amendment or termination of the Agreement), and any and all laws or regulations conferring such rights or benefits are hereby excluded (to the maximum extent permissible). Nothing contained in the Agreement shall create any agency, fiduciary, joint venture or partnership between you and us.

IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed as of the Effective Date, by its duly authorized officer(s).

BANK OF AMERICA, N.A.
(COMPANY'S LEGAL NAME)
By: By:
(Signature) (Signature)
Name: Name:
(Print or Type) (Print or Type)
Title: Title:
(Print or Type) (Print or Type)
Address for Notices: Address for Notices:

Bank of America
Bank of America Office Park
Mail Code FL9-200-02-04 Resolution Services
Jacksonville, FL 32256

CAPSG Sched of Fees/Charges Revised Feb 13 2015

CALIFORNIA PUBLIC SECTOR GROUP

SCHEDULE OF FEES AND CHARGES
Program Overview:

California Public Sector Group (CAPSG). CAPSG is an association of Bank of America’s Purchase Card, Travel Card and ePayables public sector clients. The purpose of the California Public Sector Group is to help state and local government agencies, public schools and municipalities to grow their card programs and earn rebates on their annual Transaction Volume.

To help all members maximize their earning potential, the CAPSG program aggregates all members annual spend volume and pay’s each member based on their individual contribution.

I. GENERAL PRODUCT FEES AND CHARGES
Corporate Billed – LCNAC498 Fee
Annual Card Fee Waived
Late Fee
(An account is assessed a late fee three (3) days
after cycle. The fee will be assessed as a % of
the past due amount for the current month’s
charges and any unpaid balances when the
account is past due 01-30 days)

2.5% of total due (minimum $250; maximum
$3500)
Late Fee Assessment ➢ Assessed 3 days after CYCLE date
Periodic Finance Charge Fee
(Finance charges accrue on all balances that are
31-60 days past due)
➢ Prime Rate + 1%
Over limit Fee
(Assessed when aggregate charge limit is
exceeded)
➢ No Fee
Cash Advance Fee ➢ 2.5% of transaction amt ($5 min/no
max)
➢ N/A for ePayables
Logo Fee
(Choose one color from the following six colors:
1) black; 2) white; 3) blue; 4) red; 5) green; 6)
burgundy).
➢ Waived
➢ N/A for ePayables
Unique Custom Design Fee
➢ As quoted
➢ N/A for ePayables
Return Check Fee ➢ $29.00
International Transaction Fee
(Fee cannot be waived) Up to 1% of USD amount
If you make a Transaction in currency other than U.S. dollars, Visa or MasterCard will convert the charge or credit into a U.S. dollar amount. The conversion rate on the processing date may differ from the rate on the date of your Transaction. The exchange rate used by Visa will either be (i) a rate selected by Visa from a range of rates available in wholesale currency markets for the applicable central processing date, which rate may differ from the rate Visa receives, or (ii) the government-mandated rate in effect for the central processing date. MasterCard will use an exchange rate of either (i) a wholesale market rate or (ii) a government-mandated rate. We may add a 1% fee to the U.S. dollar amount of any Transaction that is made in foreign currency or that is made outside the United States even if you pay in U.S. dollars (the “International Transaction Fee”). The International Transaction Fee will be shown in the Activity section on your billing statement. The International Transaction Fee will be aggregated in the Other Fees category on the Summary section of your statement.

Attachment 9B

CAPSG Sched of Fees/Charges Revised Feb 13 2015

1. GENERAL PRODUCT FEES AND CHARGES
ePayables – LCNAC495 Fee
Annual Card Fee Waived
Late Fee
(An account is assessed a late fee three (3) days
after cycle. The fee will be assessed as a % of the
past due amount for the current month’s charges
and any unpaid balances when the account is past
due 01-30 days)

2.5% of total due (minimum $250;
maximum $3500)
Late Fee Assessment ➢ Assessed3 days after CYCLE date
Periodic Finance Charge Fee
(Finance charges accrue on all balances that are
31-60 days past due)
➢ Prime Rate + 1%
Return Payment Fee (NSF) ➢ $29.00
International Transaction Fee
(Fee cannot be waived)
Up to 1% of USD amount
If you make a Transaction in currency other than U.S. dollars, Visa or MasterCard will convert the charge or credit into a U.S. dollar amount. The conversion rate on the processing date may differ from the rate on the date of your Transaction.

The exchange rate used by Visa will either be (i) a rate selected by Visa from a range of rates available in wholesale currency markets for the applicable central processing date, which rate may differ from the rate Visa receives, or (ii) the government-mandated rate in effect for the central processing date. MasterCard will use an exchange rate of either (i) a wholesale market rate or (ii) a government-mandated rate. We may add a 1% fee to the U.S. dollar amount of any Transaction that is made in foreign currency or that is made outside the United States even if you pay in U.S. dollars (the “International Transaction Fee”). The International Transaction Fee will be shown in the Activity section on your billing statement.

The International Transaction Fee will be aggregated in the Other Fees category on the Summary section of your statement.

CAPSG Sched of Fees/Charges Revised Feb 13 2015
II. ELECTRONIC PRODUCTS SCHEDULE OF FEES AND CHARGES
Visa:

Works ➢ Fee Waived
MasterCard:

Works ➢ Fee waived
Custom Requests for development outside of the Works application normal implementation:

Custom Development ➢ $150.00 per hour
Custom Maintenance ➢ $150.00 per hour
Works Receipts Imaging OPTIONAL
➢ Free

END OF SCHEDULES I AND II

CAPSG Sched of Fees/Charges Revised Feb 13 2015
C. AMENDED SCHEDULE OF REBATES
(Cycle and Grace Days)
REBATE DEFINITIONS:

Capitalized terms, which are not defined in this Schedule, have the meanings ascribed in the applicable Card Agreement.
"Calculation Period" means each subsequent three month period after the Initial Calculation Period. The Initial Calculation Period will commence on July 01 – September 30 2012 as the first quarter.
“Credit Losses” means any balances which remain unpaid by Company, Participant or a Cardholder six (6) billing periods after the closing date on the Billing Statement in which the Transactions, fees and charges appeared for the reporting period. “Cycle Days” means the number of days from the start of the billing period to the Billing Statement date.
“Grace Days” means the number of days after the Billing Statement closing date within which payment is due.
“Large Ticket Interchange Transactions” means certain transactions which, based upon the type of merchant and/or transaction dollar amount, are subject to a Visa or MasterCard large ticket interchange program, as determined by and amended by Visa and MasterCard from time to time.
"Rebate Multiplier" means the multiplier corresponding to the Standard Transaction Volume and Cycle and Grace Days as set forth in the Standard Transactions Rebate Multiplier Table, and the multiplier corresponding to the Large Ticket Interchange Transaction Volume and Cycle and Grace Days set forth in the Large Ticket Interchange Transactions Rebate Multiplier Table below.
“Standard Transactions” means the Transaction Volume not meeting the criteria for Large Ticket Interchange Transactions.
“Total Credit Losses” means, for any Calculation Period, the sum of (i) Bank of America’s Credit Losses on the Card Accounts for the Calculation Period and (ii) Bank of America’s Credit Losses on the Card Accounts for any previous Calculation Period which have not been applied against any rebate payable under the Agreement. “Transaction Volume” means, for any Calculation Period, the total dollar amount of purchase Transactions made with the Cards during the Calculation Period, less the total dollar amount of: returned purchases, credit adjustments, Transactions resulting from Unauthorized Use, and disputed charges. Cash advances and Convenience Checks are not included in Transaction Volume.

REBATE CONDITIONS:

During the Calculation Period, the program must meet all of the following conditions in order to qualify for a rebate:
i. Local Public Body pays Bank of America the total amount of the new balance shown as due on each Billing Statement on or before the Payment Due Date; and ii. Local Public Body has not breached any obligation, covenant, representation or warranty contained in this Agreement; and
iii. Calculation Period Transaction Volume meets the minimum volume requirement as set out in the Standard Transactions Rebate Multiplier Table; and

CAPSG Sched of Fees/Charges Revised Feb 13 2015
REBATE CALCULATION AND PAYMENT:

In the event that all of the above Rebate Conditions are met with respect to the Calculation Period, Bank of America will pay a rebate to Local Public Body, which shall be calculated at the end of the Calculation Period. The rebate multiplier will be determined based on (1) The combined transaction volume from all participating political subdivisions, and (2) The transaction volume from the individual Local Public Body and (3) the cycle and grace period for the individual Local Public Body.

The rebate multiplier will be determined based on the quarterly transaction volume times four.

The rebate multiplier will be applied to the quarterly transaction volume. ((Quarterly Transaction Volume for Standard Transactions x applicable Rebate Multiplier as determined above) +
(Quarterly Transaction Volume for Large Ticket Interchange Transactions x Ticket Interchange Transaction Rebate Multiplier) – Total Credit Losses
Within 90 days after the end of each agreement year, Bank of America will “true up” and pay the annualized rebate based on the following equation:
(((Annual Transaction Volume for Standard Transactions x Standard Transaction Rebate Multiplier) + (Annual Transaction Volume for Large Ticket Interchange Transactions x Large Ticket Interchange Transaction Rebate Multiplier) – Rebate paid for Quarters 1, 2 and 3 of the Agreement year) – Fourth Calculation period Credit Losses After the end of each agreement year, Bank of America will calculate the annualized rebate amount due Company based upon the formula above. Any adjustment between the rebate amount due for the agreement year and rebates previously paid for that period will be made to the last quarterly rebate payment for the agreement year. Bank of America will pay Company any amount due within 90 days following the end of each agreement year. Should Company owe Bank of America more than the rebate amount due for the last quarter of the agreement year, Company shall pay Bank of America any amount due within 90 days following the end of each agreement year.
((Transaction Volume for Standard Transactions x Rebate Multiplier) + (Transaction Volume for Large Ticket Interchange Transactions x Large Ticket Interchange Transaction Rebate Multiplier)) – Total Credit Losses
The Standard Transactions rebate multiplier will be determined based on the Calculation Period cumulative total of all Standard Transactions volume, including Standard Transactions volume from travel rewards participants, however, Standard Transactions volume that is applied to travel rewards points will not be included in the rebate payout calculation. This paragraph is applicable for products with Travel Rewards only.

Payment of any rebate will be made by ACH credit or other means determined by Bank of America, within ninety (90) days following the end of the Calculation Period.

Should one or more of the above Rebate Conditions not be met, Bank of America will be under no obligation to pay any rebate, although Bank of America may, in its sole discretion, determine to pay a rebate in an amount determined by Bank of America. Bank of America’s payment of a rebate in such circumstance will in no way obligate Bank of America to pay a rebate with respect to any subsequent Calculation Period.

CAPSG Sched of Fees/Charges Revised Feb 13 2015
STANDARD TRANSACTIONS REBATE MULTIPLIER TABLE*
California Public Sector Group
Volume
30/25 cycle grace period
Political Subdivision Volume (2) 3rd item is below in next grid Annual Transaction Volume Tier 500,000 1,000,000 2,000,000 3,000,000 7,000,000 13,000,000 20,000,000 Excludes Large Ticket Transactions
(1) 999,999 1,999,999 2,999,999 6,999,999 12,999,999 19,999,999 + Rebate Basis Points
$0 $4,999,999 28 113 120 127 134 141 142
$5,000,000 $9,999,999 29 114 121 128 135 142 143
$10,000,000 $24,999,999 30 119 126 133 140 147 148
$25,000,000 $34,999,999 31 121 128 135 142 149 150
$35,000,000 $49,999,999 32 123 130 137 144 151 152
$50,000,000 $59,999,999 33 126 133 140 147 154 155
$60,000,000 $69,999,999 34 128 135 142 149 156 157
$70,000,000 $79,999,999 35 130 137 144 151 158 159
$80,000,000 $89,999,999 36 132 139 146 153 160 161
$90,000,000 $99,999,999 37 133 140 147 154 161 162
$100,000,000 $114,999,999 38 134 141 148 155 162 163
$115,000,000 $129,999,999 39 135 142 149 156 163 164
$130,000,000 $149,999,999 40 136 143 150 157 164 165
$150,000,000 $174,999,999 41 137 144 151 158 165 166
$175,000,000 $199,999,999 42 138 145 152 159 166 167
$200,000,000 + 43 139 146 153 160 167 168
Each Local Public Body must have a minimum annual card Transaction Volume total of $500,000.00 before that Local Public Body will be eligible to receive an individual rebate payment. The Calculation Period cumulative Transaction Volume from all Local Public Body members Transaction Volume will determine the rebate volume tier for each rebatequalified consortium member.

CYCLE DAYS AND GRACE DAYS REBATE MULTIPLIER ADJUSTMENT
Increase Standard
Transaction Rebate Multiplier
based on Cycle and Grace
Days (3)
Cycle
Days 7 14 14 30 30 30 30 30
Grace
Days 3 3 7 3 7 14 20 25
Rebate
Basis
Point
Increase
23 21 18 15 13 8 4 0

LARGE TICKET INTERCHANGE TRANSACTION REBATE MULTIPLIER
Large Ticket Interchange Cycle Days 7 14 14 30 30 30 30 30 Qualified Transactions
Grace
Days 3 3 7 3 7 14 20 25
Annual Volume REBATE BASIS POINTS
$0 + 88 86 83 80 78 73 69 65
Note: The Rebate Multiplier is stated in basis points. One (1) basis point is equal to 0.01% or .0001 stated as a decimal. Ninety (90) basis points are therefore 0.90% or .0090.
* Rebates for Transaction Volume from individual liability cardholders will be five basis points (0.05%) less than the Standard Transactions Rebate Multiplier for the applicable volume tier during the Calculation Period.

CAPSG Sched of Fees/Charges Revised Feb 13 2015
Nothing in this Schedule of Fees and Charges is intended to state a term for the Agreement.

For the avoidance of doubt, any period of time set forth in the Schedule of Fees and Charges applies solely to pricing terms, but only to the extent the Agreement has not been terminated as set forth in the Agreement.

Notwithstanding anything to the contrary in the Agreement or this Schedule of Fees and Charges, all fees and charges are subject to change upon 30 days prior written notice to you if an event external to Bank of America increases the cost or decreases the revenue to Bank of America (e.g., decreases to interchange revenue paid to Bank of America by a card association, increases to funding costs due to interest rate changes or deterioration in your financial condition) in connection with providing this card program to you.

Payment of any incentive will be made by ACH credit or other means determined by Bank of America, within ninety (90) days following the end of the applicable Calculation Period. No incentive will be paid to any Participant.

Nothing in the Schedule of Fees and Charges or Addendum is intended to state a term for the Agreement. For the avoidance of doubt, any period of time set forth in the Schedule of Fees and Charges applies solely to pricing terms, but only to the extent the Agreement has not been terminated as set forth in the Agreement.

Notwithstanding anything to the contrary in the Agreement or this Schedule of Fees and Charges, all fees and charges are subject to change upon 30 days prior written notice to you if an event external to Bank of America increases the cost or decreases the revenue to Bank of America (e.g., decreases to interchange revenue paid to Bank of America by a card association, increases to funding costs due to interest rate changes or deterioration in your financial condition) in connection with providing this card program to you.

END OF SCHEDULE IV

END OF AMENDED SCHEDULE OF REBATES

ACKNOWLEDGEMENT
By signature of an authorized representative(s), you agree to the terms and conditions of this Schedule of Fees and Charges presented herein. This form must be signed in ink by an authorized representative(s) and submitted with the original signature to your Bank of America representative.

COMPANY Bank of America, N.A.
[COMPANY NAME]
By:
(Signature)
By:
(Signature)
Name:
(Print or Type)
Name:
(Print or Type)
Title:
(Print or Type)
Title:
(Print or Type)
Date: Date:

City Council Meeting
Agenda Report
Agenda Item No. 10
SUBJECT: PUBLIC HEARING: ZONING TEXT AMENDMENT (ZTA) 22- 03 - AMENDMENTS TO CALIMESA MUNICIPAL CODE TABLE

18.25.030 TO CONDITIONALLY ALLOW

TELECOMMUNICATIONS FACILITIES IN THE
NEIGHBORHOOD COMMERCIAL (“CN”) ZONE AND
CALIMESA MUNICIPAL CODE TABLE 18.30.030 TO

CONDITIONALLY ALLOW TELECOMMUNICATION
FACILITIES IN LIGHT INDUSTRIAL (“LI”) AND BUSINESS
PARK (“BP”) ZONES
MEETING DATE: September 19, 2022
PREPARED BY: Ryan Murphy, Contract Planner
RECOMMENDATION: That the City Council open the continued public hearing and continue it to the City Council Meeting of October 3, 2022 to allow staff time to finalize the proposed ordinance.

BACKGROUND/DISCUSSION: The City of Calimesa Planning Division is proposing an update to Title 18 (Zoning, Land Use and Development Regulations) (“Zoning Code”) of the Calimesa Municipal Code. The proposed changes consist of modifications to two tables in separate Chapters of the Zoning Code that govern the application procedures and allowable land uses within Commercial Zoning Districts and Industrial Zoning Districts.

The proposed changes and additions to the Zoning Code are standard in nature and are intended to respond to recently adopted federal regulations, which limits State and Local Management of the installation of wireless communications facilities and bring the Zoning Code into further compliance with those regulations.

PUBLIC HEARING NOTIFICATION: A notification of public hearing was published in the News Mirror on August 26, 2022 for the September 6, 2022 City Council meeting. A copy of the public hearing notice was posted at City Hall and the Norton Younglove Senior Center. The Notice was sent to surrounding properties, public agencies, and those who have previously requested to receive City public hearing notices. At the September 6, 2022 City Council meeting, the public hearing was continued to the September 19, 2022 meeting.

City Council Meeting
Agenda Report
Agenda Item No. 11
SUBJECT: RECOMMENDED PARK NAME FOR THE APPROXIMATELY 6- ACRE PARK LOCATED WITHIN PHASE 1 OF THE SUMMERWIND
TRAILS DEVELOPMENT – APN 413-290-062; ON ENGELMAN

DRIVE, NORTH OF PALMER AVENUE AND SOUTH OF
CHESTNUT ROAD.

MEETING DATE: September 19, 2022
PREPARED BY: Kelly Lucia, Planning Director
RECOMMENDATION: It is respectfully recommended that the City Council:

1. Receive and file the proposed park name recommended by the Parks, Trails, and Community Services Commission.

2. Provide direction to Staff regarding the official naming of the 6-Acre park in the Summerwind Trails Development.

BACKGROUND/DISCUSSION: The Summerwind Ranch at Oak Valley Specific Plan (Amendment 3) provides for up to 3,841 residential units, three potential school sites, approximately 130 acres of business park, approximately 130 acres of commercial/retail development, 89 acres of parks, and 1,404 acres of open space. The first phase of residential development within the specific plan is referred to as the “Summerwind Trails” project consists of the following:
• 633 single family homes
• A 20-acre school site for kindergarten through eighth grade (K-8) • A loop paseo/trail system with mile markers and trailheads • Approximately 96 acres of open space
• An approximately six-acre public park (subject park)
On January 11, 2021, the Planning Commission and Parks, Trails, and Community Services Commission conducted a joint workshop to discuss the proposed design of the park. After receiving feedback from the commissions, the developer (JEN SoCal 1, LLC) finalized the park design to include the following features:
• Little League sized baseball diamond with backstop/dugouts/bleachers • Restroom building
• Parking lot with 35 spaces
• Full court basketball with separate toddler drop shop (shorter hoop) • Gazebo/shelter with picnic tables and barbeque grill

• (2) Tot lots – (2-5 years/5-12 years) The 2–5-year-old play area to have a low tubular steel fence separating it from the other play area
• Open turf play
• Asphalt loop walking trail, including a pedestrian connection from Aspen Court to the park See below and Attachment A for approved concept. The park site depicted below is currently under construction.

On September 7, 2022 the Parks, Trails, and Community Services Commission conducted a workshop to discuss possible names for the new City park. The Chairman of the Commission will present the Commission’s recommended name of the park during the City Council meeting.

Please note, the proposed name of the park is recommended only. The City Council may approve, modify, or deny the recommended park name. In addition, the City Council may propose a different name altogether.

FISCAL IMPACT: There is no fiscal impact associated with naming the park.

ATTACHMENTS:

Attachment A: Approved Summerwind Park Concept

Attachment 11A

Successor Agency to the Calimesa
Redevelopment Agency Meeting
Agenda Report
CSA Agenda Item No. 1
SUBJECT: APPROVAL OF THE SUCCESSOR AGENCY TO THE CALIMESA

REDEVELOPMENT AGENCY MEETING MINUTES
MEETING DATE: September 6, 2022
PREPARED BY: Darlene Gerdes, Agency Secretary
RECOMMENDATION: That the Board of Directors approve the action minutes as presented for the Regular Successor Agency to the Calimesa Redevelopment Agency Meeting of September 6, 2022.

ATTACHMENTS:

Attachment A: City Council action minutes of September 6, 2022 regular meeting.

Minutes of the Regular Meeting of the Board of Directors of the Successor Agency to the Calimesa Redevelopment Agency
September 6, 2022

Minutes of the Regular Meeting of the Board of Directors of the Successor Agency to the Calimesa Redevelopment Agency
September 6, 2022
CALL TO ORDER 7:51 p.m. by Agency Chair Davis
ROLL CALL: CHAIRPERSON DAVIS, VICE-CHAIRPERSON MOLINA, AGENCY BOARD MEMBERS CERVANTEZ, DUVALL AND HEWITT.

ABSENT: NONE
STAFF: EXECUTIVE DIRECTOR JOHNSON, AGENCY ASSISTANT

COUNSEL KEARNS, AGENCY SECRETARY GERDES, FINANCE

DIRECTOR REID, PUBLIC WORKS DIRECTOR MONSON,

PLANNING MANAGER LUCIA, CITY ENGINEER THORNTON,
BATTALION CHIEF RAPOZA AND SHERIFF CAPTAIN SALAS.

CSA BUSINESS ITEMS
CSA1. LAST AND FINAL RECOGNIZED OBLIGATION PAYMENT SCHEDULE RECOMMENDATION: That the Successor Agency to the Calimesa Redevelopment Agency adopt CSA Resolution No. 2022-02, approving a Last and Final Recognized Obligation Payment Schedule for the period from July 1, 2023 through June 30, 2039 pursuant to Health and Safety Code Section 34191.6 and taking certain related actions.

Finance Director Reid presented the agenda report and introduced Doug Anderson from Urban Futures who was available to answer any questions of the Council.

After discussion, the following action was taken:

MOTION BY AGENCY MEMBER CERVANTEZ, SECONDED BY AGENCY MEMBER DUVALL, CARRIED 5-0 TO ADOPT CSA RESOLUTION NO. 2022-02, APPROVING

A LAST AND FINAL RECOGNIZED OBLIGATION PAYMENT SCHEDULE FOR THE PERIOD FROM JULY 1, 2023 THROUGH JUNE 30, 2039 PURSUANT TO HEALTH AND SAFETY CODE SECTION 34191.6 AND TAKING CERTAIN RELATED ACTIONS.

ADJOURN THE SUCCESSOR AGENCY TO THE CALIMESA REDEVELOPMENT

AGENCY AND RECONVENE THE CITY COUNCIL MEETING
The Successor Agency to the Calimesa Redevelopment Agency adjourned and the City Council Meeting was reconvened at 7:56 p.m.

Respectfully submitted,
Darlene Gerdes,
Agency Secretary
Attachment CSA1A