AGENDA
REGULAR MEETING OF THE
CITY OF KING CITY COUNCIL
AND
Sitting as SUCCESSOR AGENCY OF
THE RDA FOR THE CITY OF KING
TUESDAY MARCH 28, 2023
6:00 P.M.
CITY HALL
212 S. VANDERHURST AVENUE
KING CITY, CALIFORNIA 93930
The City Council meeting will be conducted in hybrid in-person/virtual format.
To join the meeting virtually, please use the link below to join the Zoom meeting:
https://bit.ly/3e0zvaR
Meeting ID: 881 5287 9536
Or by telephone: 1-669-900-9128
Passcode: 052933
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1. CALL TO ORDER
2. ROLL CALL: Council Members Robert Cullen, Carlos DeLeon, Mayor Pro Tem Carlos Victoria, and Mayor Mike LeBarre
3. FLAG SALUTE
4. CLOSED SESSION ANNOUNCEMENTS
5. APPOINTED COUNCILMEMBER OF DISTRICT 1
A. Oath of Office Administered by the City Clerk to Oscar Avalos
6. PUBLIC COMMENT
Any member of the public may address the Council for a period not to exceed three minutes’ total on any item of interest within the jurisdiction of this Council that is not on the agenda. The Council will listen to all communications; however, in compliance with the Brown Act, the Council cannot act on items not on the agenda. Comments should be directed to the Council as a whole and not to any individual Council Member. Slanderous, profane or personal remarks against any Council Member, staff member or member of the audience is not permitted.
7. COUNCIL COMMUNICATIONS & COMMITTEE REPORTS
Individual Council Members may comment on Council business, his or her Council activities, City operations, projects or other items of community interest. Council Members may also request staff to report back at a subsequent meeting on any matter or take action to direct staff to prepare a staff report for a future agenda.
8. STAFF COMMUNICATIONS
Comments presented by the City Manager, City Attorney or other staff on City business and/or announcements.
9. CONSENT AGENDA
The following items listed below are scheduled for consideration as a group. The recommendations for each item are noted. Members of the audience may speak on any item(s) listed on the Consent Agenda. Any Council Member, the City Manager, or the City Attorney may request that an item be withdrawn from the Consent Agenda to allow for full discussion.
The Council may approve the remainder of the Consent Agenda on one motion. Items withdrawn from the Consent Agenda may be considered by separate motions at the conclusion of the discussion of each item.
A. Consideration: Meeting Minutes of March 14, 2023, Council Meeting Recommendation: approve and file.
B. Consideration: Emergency Meeting Minutes of March 14, 2023, Council Meeting
Recommendation: approve and file.
C. Consideration: City of King Check Register March 1, through March 15, 2023 Recommendation: receive and file.
D. Consideration: Annual General Plan Report and Housing Element Annual Report for 2022
Recommendation: review and accept the 2022 Annual General Plan Progress and Housing Element Annual Reports.
E. Consideration: Commission and Committee Appointments Recommendation: adopt a Resolution 1) reappointing David LeBarre and Chris Madson to the Airport Advisory Committee; 2) reappointing David Nuck and Steve Wilson to the Planning Commission; 3) reappointing Trina Hearne and Cheryl Harrison to the Parks and Recreation Commission; 4) appointing Joshua Zamora to the Parks and Recreation Commission; and 5) appointing Margarita Lopez to the Budget Advisory Committee.
F. Consideration: Support for State Financial Relief Package for California Hospitals
Recommendation: approve and authorize the Mayor to sign a letter of support to Governor Newsom for a one-time financial relief package in 2023 for California hospitals.
G. Consideration: Award of Visitor and History Center Remodel (Phase 1), Pursuant to Section 15301 of the CEQA Guidelines
Recommendation: 1) award Visitor and History Center Demo and Rough Carpentry Project (Phase 1) to the low bidder Two Team Construction Inc., in the amount of $89,000; 2) authorize the City Manager to approve change orders up to 10%; and 3) adopt a finding of a Categorical Exemption, pursuant to Section 15301 of the CEQA Guidelines.
H. Consideration: Opposition to Bans on Rodeos in California Recommendation: adopt a Resolution opposing regulations that would ban rodeos in California
I. Consideration: Wastewater Treatment Plant and Recycled Water Project State Water Resource Control Board Financial Assistance Application Authorizing Resolution
Recommendation: 1) adopt a Resolution designating the City Manager as the authorized representative to execute all documents necessary for the application and approval of financial assistance from the State Water Resources Control Board for the King City Wastewater Treatment Plant and Recycled Water Project; and 2) direct staff to submit an application for full grant funding for construction of the project.
J. Consideration: Debt Management Policy
Recommendation: approve the proposed Debt Management Policy.
10. PUBLIC HEARINGS
None
11. REGULAR BUSINESS
A. Consideration: Cannabis Cultivation Tax Study
Recommendation: 1) approve and authorize the City Manager to execute a contract with HdL Companies to prepare a fiscal analysis of cannabis cultivation tax rates in a form approved by the City Attorney; and 2) appropriate $23,100 for the cost of the analysis.
B. Consideration: Selection of Broadway Street Wind Sculptures Recommendation: 1) approve selection of sculptures for the Downtown Streetscape Plan Median Improvements, Downtown Plaza, and the Step Up Permanent Supportive Housing Project; 2) award a contract to Saori Ide and Jonathan Russell for the sculptures for the Broadway Street medians and Downtown Plaza; and 3) authorize the City Manager to make minor nonsubstantive changes to the agreements as necessary in a form approved by the City Attorney.
12. CITY COUNCIL CLOSED SESSION
Announcement(s) of any reportable action(s) taken in Closed Session will be made in open session and repeated at the beginning of the next Regular City Council meeting as this portion of the meeting is not recorded.
A. Conference with Legal Counsel – Liability Claims (Pursuant to Government Code Section 54956.95) Consideration of Claim No. 2023- 007 claim alleging city employee flipped a bolt up while weed eating the grass in front of business and broke the window.
13. ADJOURNMENT
The City of King is an equal opportunity provider and employer.
City Council Meeting
March 14, 2023
1.__CALL TO ORDER:
Regular Meeting called to order at 6:01pm by Mayor Pro Tem Victoria.
2.__ROLL CALL:
City Council: Mayor Mike LeBarre is absent, Council member, Carlos DeLeon, Rob Cullen Mayor Pro Tem Carlos Victoria
City Staff: Public Works Director/Engineer, Octavio Hurtado; Interim Chief of Police, James Hunt; City Attorney Roy Santos (Teleconference); City Clerk, Erica Sonne.
3.__FLAG SALUTE:
The flag salute was led by Council member DeLeon.
4. CLOSED SESSION ANNOUNCEMENTS:
None
5.__PRESENTATIONS:
A. Mayor Pro Tem Victoria presented the National Small Business Development Center Day Proclamation to Cindy Merzon.
B. Mayor Pro Tem Victoria read the California General Aviation Appreciation Month Proclamation into the record, and it will be sent to them.
6. PUBLIC COMMUNICATIONS:
Liz Hall, waste Management announced that they are having a King City Community Drop-off Event, this Saturday, March 18, 2023 8a.m.-10:30a.m. until dumpsters are full at 625 Division St, Salinas Valley Fairgrounds. King City in Bloom’s cleanup event will be this same day as well 8-10a.m. Volunteers will meet at the fairgrounds to pick-up gloves and bags. Free Coffee and donuts will be available. Council member Cullen stated that the Senate Session on March 6th was adjourned in memory of Council member Acosta.
7. COUNCIL COMMUNICATIONS:
Council Member Cullen stated that the Highlights for the Solid Waste Authority meeting are in the packet, he also reminded of what can be dropped off this weekend old computers, oil, paint. He thanked all that attended the Citizen of the Year event and Mayor for the Proclamation. Council member Cullen will not be at the next meeting.
Council Member DeLeon had nothing to report out tonight.
Mayor Pro Tem Victoria stated that he would be sharing this weekend’s event flyer on his social media.
He stated that AMBAG adjourned their meeting in Council member Acosta’s honor. 9(A)
8. CITY STAFF REPORTS AND COMMENTS:
City Clerk Erica Sonne stated that we have received 3 applications for City Council seat in District 1. Last day to apply was today. Special meeting March 22, 2023 will be held for Council to make a decision.
Public Works Director/Engineer Octavio Hurtado spoke on the flood. The golf course was flooded again however Villa Drive has not flooded and the pump was being used to keep the flood waters from collecting on Villa Drive.
Interim Chief of Police James Hunt spoke on the flood water as well and the departments ongoing monitoring of the river.
City Attorney Roy Santos stated he had nothing to report tonight.
9. CONSENT
A. Consideration: Meeting Minutes of February 28, 2023, Council Meeting B. Consideration: City of King Check Register February 16, through February 28, 2023 C. Consideration: King KCCP Payments for The Month of January 2023 D. Consideration: King KCCP Payments for The Month of February 2023 E. Consideration: An Ordinance of the City Council of the City of King Amending Chapter 17.03 of Title 17 of the King City Municipal Code Pertaining to Commercial Cannabis Dispensaries F. Consideration: Code Enforcement Officer Safety Policies and Procedures G. Consideration: Second Amendments to Contract Professional Service Agreements for Janitorial Services
Action: Motion to approve consent agenda items A—G by and Cullen seconded by DeLeon.
AYES: Council Members: Victoria, DeLeon, Cullen,
NOES: Council Members:
ABSENT: Council Members: LeBarre,
ABSTAIN: Council Members:
Mayor Pro Tem Victoria is in favor of bringing the maintenance of the bathrooms back in house and not contracting out.
10. PUBLIC HEARING:
None
11. REGULAR BUSINESS
A. Consideration: Release of a Request for Proposal By the Cities of Gonzales, Soledad, Greenfield, and King City to Select a Qualified Contractor to Collect Solid Waste, Recyclables and Organic Waste Within the Boundaries of Each City as a Single Franchise Collection Zone Patrick Mathews, General Manager/CAO, Salinas Valley Solid Waste Authority introduced this item with a PowerPoint.
Liz Hall, Public Sector Manager, Brad Cea, Area Public Sector Director, Ivan Solorio, District Manager, Fernando Homer Diaz, Manager for King City Drivers all of Waste Management ask City Council to consider not approving the release of RFP for the collection of solid waste, recyclables and organic waste. They
would like the City to choose to stay with Waste Management.
Action: Motion to approve the release of the Request for Proposals (RFP) for collection of solid waste, recyclables and organic waste with the intent to jointly select and award contract(s) to one franchise waste hauler for all the South Monterey County cities by DeLeon seconded by Cullen.
AYES: Council Members: Victoria, DeLeon, Cullen,
NOES: Council Members:
ABSENT: Council Members: LeBarre,
ABSTAIN: Council Members:
12. CITY COUNCIL CLOSED SESSION
A. None
ADJOURNMENT:
Mayor Pro Tem Victoria adjourned the meeting at 7:09p.m. on a motion by Cullen and second by DeLeon passed unanimously.
Approved Signatures:
Mayor Pro Tem, Carlos Victoria City Clerk, Erica Sonne
City of King City of King
Emergency
City Council Meeting
March 14, 2023
1.__CALL TO ORDER:
Regular Meeting called to order at 6:01pm by Mayor Pro Tem Victoria.
2.__ROLL CALL:
City Council: Mayor Mike LeBarre is absent, Council member, Carlos DeLeon, Rob Cullen Mayor Pro Tem Carlos Victoria
City Staff: Public Works Director/Engineer, Octavio Hurtado; Interim Police Chief James Hunt; City Attorney Roy Santos (Teleconference); City Clerk, Erica Sonne.
3.__FLAG SALUTE:
The flag salute was led by Council member DeLeon.
4. PUBLIC COMMUNICATIONS:
None
5. VOTE TO CONSIDER EMERGENCY ITEM:
Mayor Pro Tem Victoria opened the item for discussion by City Council.
Council member Cullen made a motion to hear the item, seconded by Council member DeLeon, motion carried 3-0.
6. Emergency Item:
A. Consideration: Resolution of the City Council of the City of King, Reconfirming the City Manager/Director Of Emergency Services' Proclamation of Existence of A Local Emergency and Finding the Existence of a Continuing Local Emergency as the Result of Severe Weather and Flooding Recommendation: City Council adopt a Resolution confirming the City Manager/Director of Emergency Services’ Proclamation of Existence of a Local Emergency.
City Attorney Roy Santos introduced this item for consideration.
Action: Motion to adopt a Resolution confirming the City Manager/Director of Emergency Services’ Proclamation of Existence of a Local Emergency by and Cullen seconded by DeLeon.
AYES: Council Members: Victoria, DeLeon, Cullen,
NOES: Council Members:
ABSENT: Council Members: LeBarre,
ABSTAIN: Council Members:
ADJOURNMENT:
Mayor Pro Tem Victoria adjourned the meeting at 7:09p.m. on a motion by DeLeon and second by Victoria passed unanimously.
Approved Signatures:
Mayor Pro Tem, Carlos Victoria City Clerk, Erica Sonne
City of King City of King
9(B)
Item No. 9(C)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MIKE HOWARD, FINANCE DIRECTOR
RE: CONSIDERATION OF CITY OF KING CHECK REGISTER
MARCH 1 THROUGH MARCH 15, 2023
RECOMMENDATION:
It is recommended City Council receive and file.
BACKGROUND:
At least once a month, the City Treasurer shall submit to the City Council, a copy of the invoices paid for the previous month.
DISCUSSION:
The purpose of this item is to provide the Council an opportunity to review and monitor ongoing expenditures. These documents are attached.
COST ANALYSIS:
There is no fiscal impact as a result of this action.
ENVIRONMENTAL REVIEW:
No Environmental Review required for this item.
ALTERNATIVES:
The following alternatives are provided for Council consideration:
1. Receive and file the report; or
2. Provide other direction to staff regarding requests for additional information.
CITY COUNCIL/CITY
CONSIDERATION OF CITY OF KING CHECK REGISTER MARCH 1
THROUGH MARCH 15, 2023
MARCH 28, 2023
PAGE 2 OF 2
Exhibits:
1. Check Register Report
Submittedby: i�'r:/� � MikeHowardI F1nance0irecto
Approved by: .� )
Steven Adams, City Manager
Item No. 9(D)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DOREEN LIBERTO, AICP, MDR, COMMUNITY DEVELOPMENT
DIRECTOR
RE: CONSIDERATION OF ANNUAL GENERAL PLAN REPORT AND
HOUSING ELEMENT ANNUAL REPORT FOR 2022
RECOMMENDATION:
It is recommended City Council review and accept the 2022 Annual General Plan Progress and Housing Element Annual Reports.
BACKGROUND:
California Government Code Section 65400(a) (2) requires an annual report on the status of the General Plan and the City's progress in its implementation, including progress in meeting its share of regional housing needs. This annual General Plan Progress Report (Progress Report) is submitted to the City Council, the Housing and Community Development Department (HCD), and the Office of Planning and Research (OPR). This is an opportunity to review activities and projects of the prior year in the areas of development and other programs that work toward implementing the City's General Plan. The Annual Report is due to the State on April 1st.
DISCUSSION:
The purpose of the Progress Report is twofold. First, it informs the State of California of the City’s planning activities and assists in facilitating the legislative process as it pertains to land use and local planning issues. Second, the Progress Report serves to update the decision makers on progress toward the implementation of policies of the City of King General Plan and assists in formulating future implementation priorities.
The State of California requires each county and city to adopt a General Plan for long-term growth. The general plan consists of a statement of development
CITY COUNCIL
CONSIDERATION OF ANNUAL GENERAL PLAN REPORT AND HOUSING ELEMENT ANNUAL REPORT FOR 2022
MARCH 28, 2023
PAGE 2 OF 4
policies and includes a map or maps and text setting forth goals and policies. It is a comprehensive long-term plan for the physical development of the county. In this sense, it is a "blueprint" for development.
The seven (7) State-mandated elements of the General Plan include:
1. Land Use
2. Circulation
3. Housing
4. Safety
5. Open Space
6. Noise
7. Conservation
The City of King’s General Plan consists of the mandated elements and an optional element called Economic Development. The Economic Development Element was updated in January 2022. A comprehensive General Plan update occurred in 1998. Modifications to the land use, housing, safety, open space and conservation elements were adopted by the City Council in 2016. The City is in the process of updating the Land Use Element (LUE).
A housing element is the one element of the General Plan that requires State review and approval. The most recent Housing Element update was adopted by the City Council on March 22, 2016, and covers the reporting period from 2015- 2023. The Housing Element includes policies, programs, and quantified objectives to guide the City’s development decisions and is designed to implement the removal of governmental constraints to the maintenance, improvement, and development of housing in the City of King. It is very important that the Housing Element Annual Report be submitted to the State by April 1. Charter Cities were exempt from submitted reports until April 1, 2018. Failure to submit the Annual Report could result in enforcement action by the State.
The City’s Cycle 6 Housing Element Regional Housing Needs Allocation (RHNA) number is 702 units. Table 1 shows the RHNA breakdown by income. The income groups are defined as a percentage of Area Median Income (AMI). Each year, the Housing and Community Development (HCD) Department identifies the AMI. The 2022 AMI for Monterey County is $90,100. Cycle 6 will include the years 2023 – 2031. Approximately 77% of the RHNA numbers are in the moderate-income group and above moderate-income group ranges. According to State law, when the Housing Element is amended, additional policies need to be added to the Safety Element and Open Space Element related to hazardous conditions and mitigation. They will be processed concurrently.
CITY COUNCIL
CONSIDERATION OF ANNUAL GENERAL PLAN REPORT AND HOUSING ELEMENT ANNUAL REPORT FOR 2022
MARCH 28, 2023
PAGE 3 OF 4
Table 1
Cycle 6 RHNA – Income Group Totals
Very Low
(Less than
50% of AMI)
Low (50-80%
of AMI)
Moderate (80-
120% of AMI)
Above
Moderate
(120% or more
of AMI)
TOTAL
97 (13.8%) 63 (9.0%) 178 (25.3 %) 364 (51.9%) 702 (100%) The City’s Cycle 5 Housing Element (2016-2023) RHNA number is 180 units.
Approximately 415 total units have been constructed as of 2022; thus, exceeding the City’s total RHNA. However, based on income groups, an additional 40 lowincome and moderate-income units are needed.
Some of the key accomplishments identified in the report include the installation of the Arboleda and Mills Ranch linear parks, grant funding approved for bike trails, progress on the Downtown Plaza project, design and funding progress on the multimodal transit center, the wildfire prevention plan grant, completion of design and environmental review for the roundabout project, upgrade of the noise ordinance to address noise complaints, and approval of the homekey project to address homelessness.
COST ANALYSIS:
The cost associated with the Progress Report includes staff time preparing and distributing it.
ENVIRONMENTAL REVIEW:
This matter is not a “project” for the purposes of the California Environmental Quality Act (CEQA) as it does not have the potential for resulting in either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment. No further action is required under CEQA for City Council action.
ALTERNATIVES:
The following alternatives are provided for Council consideration:
1. Review and accept the Report;
2. Amend and accept the Report;
3. Do not accept the Report; or
4. Provide other direction to staff.
CITY OF KING
2022 GENERAL PLAN ANNUAL REPORT /
HOUSING ELEMENT ANNUAL PROGRESS REPORT
March 28, 2023
EXHIBIT 1
CITY OF KING
2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
PAGE 2 OF 14
TABLE OF CONTENTS
I. INTRODUCTION
A. Background
B. Informational Document (CEQA Review)
II. GENERAL PLAN IMPLEMENTATION
A. Land Use Element
B. Open Space/Conservation/Safety Elements
C. Circulation Element
D. Noise Element
E. Housing Element
F. Economic Development Element
III. DEVELOPMENT REVIEW PROJECTS
A. Buildings Permits
B. Planning Permits and Code Enforcement
C. Project Review
IV. GRANTS
V. CONCLUSION
Appendix
Attachment A – 2022 Housing Element Annual Progress Report
CITY OF KING
2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
PAGE 3 OF 14
I. INTRODUCTION
California Government Code Section 65400(a) (2) requires an annual report on the status of the General Plan and the City's progress in its implementation, including progress in meeting its share of regional housing needs. (Charter Cities were required to start submitting the Annual Reports in April 2018.) The General Plan Annual Progress Report and Housing Element Annual Report are being submitted to the City Council, State Housing and Community Development Department (HCD) and the Office of Planning and Research (OPR). This is an opportunity to review activities and projects of the prior year in the areas of development and other programs that work toward implementing the City's General Plan.
Attachment 1 provides spreadsheets of the specific developments proposed and approved in the City during 2022.
A. Background
California State law establishes a framework for local planning procedures. The California Government Code (§65000 et seq.) establishes the laws pertaining to the regulation of land uses by all local governments including: the general plan requirement, specific plans, subdivisions, and zoning. The City of King is mandated by the State to conform to the California Government Code. (It should be noted that since the City is a Charter City, some provisions of the Government Code do not apply.) The City’s General Plan was comprehensively updated in 1998. Since its adoption (and subsequent amendments), the City has worked to implement the policies outlined in the General Plan. The various departments that make up the City of King work together to implement various aspects of the General Plan. These departments include the City Manager's office, Parks and Recreation, Fire, Public Safety, Public Works, and Community Development. This report is organized to comply with OPR's General Plan Guidelines.
B. Informational Document (CEQA Review)
This document is a reporting document and does not create or alter policy and therefore, not a project for the purpose of the California Environmental Quality Act (CEQA). ll. GENERAL PLAN IMPLEMENTATION, PROJECTS AND ACCOMPLISHMENTS This Progress Report discusses specific projects and policies that demonstrate the implementation of the goals outlined in the General Plan.
A. Land Use Element
The Land Use Element (LUE) establishes the type and density of land uses and guides growth and development by presenting a plan that reflects the community's desire to maintain and enhance an enjoyable, balanced quality of life. The City's Land Use Map identifies specified land use areas, including Agriculture, Residential, Commercial, industrial and Open Space/Recreation. The City updated the LUE in 2016 and is currently in the process of updating it again to incorporate State housing policies and the City’s future
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2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
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land use patterns.
The City has implemented many of the Goals, Policies and Programs in the updated 2016 Land Use Element, as listed below.
• Objective 7.1.3: Continue to develop and adequately maintain a coordinate system of parks and recreational facilities in the city.
ACCOMPLISHMENTS
• The Arboleda Specific Plan and Mills Ranch Specific Plan Linear Parks were installed and should be open to the public in 2023.
• The City obtain grant funding to install bicycle trails/multi-use trails. • City staff continues to work on the Plaza Park, which will include a performance stage with gazebo, open lawn areas, children’s play elements, a promenade, interactive public art pieces, restroom, park, parking lot, landscaping, and lighting. • Program No. 4.1.1.1: The City shall encourage development of new businesses that will offer year-round employment in order to reduce the season unemployment that is characteristic of the current local employment.
• Objective 8.1: Build an efficient, multi-modal transit center (MMTC) surrounded by mixed use developments to improve the quality of life, support economic vitality and reduce greenhouse gas emissions.
• Policy 8.1.1: The City shall collaborate with federal, state and regional governments.
Fort Hunter Liggett, Union Pacific and other involved entities to locate funding for the design and construction of the MMTC.
ACCOMPLISHMENTS
• Design and engineering plans for the accelerated rail platform were submitted to Union Pacific (UP) for review and comment and the City is in negotiations with UP to determine the track improvements needed to begin passenger service. • Program No. 8.1.1.2: The City shall pursue available revenues to fund the multimodal transit center (MMTC).
ACCOMPLISHMENTS
• The California Transportation Commission reserves $7.5 million for Phase 1 of King City’s Accelerated Access Rail Platform & Multi-Modal Transit Center and is working with the State and Fort Hunter Liggett to gain additional funding.
B. Conservation, Open Space & Safety Element
The City amended the conservation, open space and safety elements in 2016, and
CITY OF KING
2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
PAGE 5 OF 14
combined the three (3) elements. Updates and amendments to these elements were primarily to make corrections and ensure consistency with the updated housing and land use elements. The open space, conservation and safety elements incorporates goals, policies and programs that protect residents from flooding hazards by updating flood maps that incorporate the most recent Federal Emergency Management Agency flood mapping.
Amendments also recommend the development of a proposed MMTC near First Street.
The changes will help provide better housing, reducing vehicular trips, reducing energy consumption, reducing use of fossil fuels and improving air quality. • Hazard Prevention Goal COS-12: Reduce the risks from fire hazards, hazardous materials and seismic events to an acceptable level.
ACCOMPLISHMENT:
• The City applied for and received a $214,000 Cal Fire Wildfire Prevention Plan grant.
Work will begin on the Plan later in 2023.
C. Circulation Element
The circulation element provides goals, objectives and policies to service future transportation needs. One goal is to provide an integrated transportation system to adequately serve residential, commercial, industrial and recreation uses. The City has been working with the Transportation Agency for Monterey County (TAMC) and applying for funding for the proposed multi-modal transit center and installation of bike lanes. • Policy 1.4: The City shall coordinate its transportation planning efforts with TAMC and Caltrans. City staff shall attend TAMC technical meetings as needed and shall maintain regular contact with state and regional transportation planning officials.
ACCOMPLISHMENTS
• City staff regularly meets with and talks to TAMC, Caltrans and other transportation related officials to communicate the city’s transportation needs. • The City completed the environmental work to install a roundabout at San Antonio Road and Highway 101.
• Goal No. 3: To provide a Public Street and Highway System that accommodates Existing and Project Traffic Volumes within the Planning Area. • Policy 3.7: The City shall seek opportunities to enhance the gateway areas of the city and at key entry points for neighborhoods.
ACCOMPLISHMENT
• The roundabout project has received City planning approval and CEQA clearance.
Engineering is 90% complete and the project will be shoveled ready. The city is currently seeking funding for this project which will increase safety and capacity and
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2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
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will promote the multi modal transit center. This project ties into the HEP project for the San Antonio Drive bike plan and pedestrian path.
• Goal No. 4: To establish and maintain adequate on and off-street parking as required by new development and existing uses.
• Policy 4.1: The City shall monitor parking conditions during peak=hour periods within its downtown area on a regular basis to assure that parking
ACCOMPLISHMENT
• The City converted parallel parking to diagonal parking to increase safety and maximize parking with and the downtown area.
• Goal No. 7: To Provide a System of Hiking and Equestrian Trails that Promote the Recreation Potential of the City’s Parks and Open Space Areas.
ACCOMPLISHMENT
• The City has received an $11 million grant for the Active Transportation Program (ATP) for the San Antonio Drive bike path and pedestrian path and educational program.
D. Noise Element
The noise element provides noise compatibility levels. Municipal Code Section 7.25 addresses prohibited noise conduct.
ACCOMPLISHMENTS
• The City began an analysis of the noise ordinance to identify methods to address noise complaints. The analysis includes changes to the definitions, sound level measurements for exterior and interior noise, an exemption section and adding transition period standards are proposed.
E. Housing Element
The Housing Element establishes housing objectives, policies and programs in response to community housing conditions and needs. Some of the goals and policies met during 2022 are identified below.
• Goal No. 2: Preserve and Rehabilitate Existing Housing Stock to Meet Health and Safety Requirements.
• Policy No. 3: Meet the housing needs of special groups of City residents, including the growing farmworker and senior populations, large families, single mothers, homeless, and the disabled.
• Policy No. 3.1 The City shall encourage the development of housing for agricultural
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2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
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workers, seniors, congregate care facilities and similar special housing needs population.
ACCOMPLISHMENTS
• The City and Shangri-La Construction began work on converting the Days Inn Motel to a permanent supportive housing project. The NEPA Document was completed during 2022.
• The City collaborated with Shangri-La Construction on the conversion of the Monarch Inn to a high density senior living units.
• Collaborate countywide to provide trailers for homeless individuals. • The City’s Staff Code Enforcement Committee meets month and the City’s Citizen Code Enforcement Committee meets quarterly to address code enforcement issues including housing violations. The Code Enforcement office, in cooperation with the various City departments, works on enforcing local and state laws.
The State Annual Housing Element requires the City provide a status update on Programs and Objectives. Table 1 provides a summary of the Housing Element implementation status.
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2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
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2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
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F. Economic Development Element
An Economic Development Element is not a State-mandated element of the General Plan, but the City has long realized its importance in the strategic planning of the community. The City updated the Economic Development Element in January 2022. The City’s updated Economic Development Element includes the following vision:
ACCOMPLISHMENTS
• The City continues to with the Historic Downtown businesses to improve their buildings by providing grants for frontage improvements.
III. DEVELOPMENT REVIEW PROCESS PROJECTS
During 2022, the City reviewed numerous projects through the development review process and participated in numerous planning efforts. The following section provides a general overview of the projects, programs and permits and the City’s accomplishments. These summaries are general and are not intended to be exhaustive.
A. Buildings Permits Issued 2022
The Building Department issued 122 building permits during 2022. Of these, approximately 41 were routed for reviewed by the Community Development Department for Zoning and General Plan consistency. Table 2 and Diagram 1 provides a breakdown a building permit cases during the years 2018, 2019, 2020, 2021 and 2022.
Table 2
Building Permits (2018-2022)
Permit Type 2018 2019 2020 2021 2022
New Single Family Dwellings 39 41 51 24 48
Carriage Units 3 3 0 6 4
Tenant Improvements 1 3 5 1 2
Commercial Remodels/Additions 10 10 4 4 2
Residential Remodels/Additions 3 11 1 7 1
Roof-Mounted Solar Panels 10 12 51 44 61
Multi-Family New Projects 0 0 0 1 0
Multi-Family Remodel Projects 2 2 1 0 0
Industrial New Construction Issued
Permits
2 0 1 0 0
Industrial Remodel Projects 3 3 3 1 4
Other 0 0 0 1
1 0
TOTAL 73 85 117 88 122
1 Sun Street Center
CITY OF KING
2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
PAGE 10 OF 14
Diagram 1
B. Planning Permits
The Community Development Department processed a variety of planning permits during 2022, including but not limited to general plan amendments, rezones, conditional use permits, parcel maps, sign permits and associated environmental review documents, as needed. In 2022, the staff and Planning Commission reviewed 41 applications, as outlined in Table 3 and Diagram 2. As a comparison, this table shows the number of permits reviewed by the Planning Commission for 2018, 2019, 2020, 2021 and 2022.
Table 3
Staff and Planning Commission Review by Application Type (2018-2022) Permit Type 2018 2019 2020 2021 2022
Conditional Use Permit 18 2 2 3 4
Conditional Use Permit
Amendment/Revisions (including cannabis) 11 2 2
4 4
Tentative Tract/Parcel Maps 1 1 0 1 2
Lot Line Adjustment 0 1 0 0 0
Lot Merger 1 0 0 0 0
General Plan Amendment 1 0 0 1 1
Rezone/Zone Change 1 1 1 1 1
Architectural Review 16 2 1 1 5
Specific Plan Amendment 0 3 1 0 0
0 20 40 60 80 100 120 140
2018
2019
2020
2021
2022
Building Permits (2018-2022)
CITY OF KING
2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
PAGE 11 OF 14
Permit Type 2018 2019 2020 2021 2022
Misc. (e.g., Home Occupation Permits
,Environmental Review, Plot Plan Reviews,
Landscaping Plans, Pre-app Reviews, Sign
Permits, Temporary, Mural Permits,
Variances)
20 24 16 15 24
TOTAL: 69 36 23 26 41
Diagram 2
In 2022, the City Council reviewed 4 planning related projects, as shown on Table 4 and Diagram 3 . Table 4 and Diagram 3 also shows the number of applications reviewed by the City Council reviewed in 2018, 2019, 2020, 2021 and 2022.
Table 4
City Council Review By Application Type (2018 – 2022)
Permit Type 2018 2019 2020 2021 2022
General Plan Amendment 1 0 0 1 1
Rezone/Zone Change 1 1 1 1 1
Ordinances (excluding zone changes) 1 3 5 1 1
Appeals 0 0 0 0 1
TOTAL: 3 4 6 3 4
In 2022, the Community Development Department was involved in 48 new code enforcement violation cases. Table 5 and Diagram 4 shows the number of code enforcement violation cases for the years 2018, 2019, 2020, 2021 and 2022. These cases included non-permitted uses on the property, uses that were not complying with their conditions of approval, and property research/records research for cases that the Building Department and Police Department were working on. There was a total of 14 active code enforcement cases in 2022. 48 cases of the total 34 cases from 2022 have been closed. 0 10 20 30 40 50 60 70 80
2018
2019
2020
2021
2022
Planning Permits (2018-2022)
CITY OF KING
2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
PAGE 12 OF 14
The Community Development Department Coordinates Staff Code Enforcement Meetings once a month and Citizen Code Enforcement Advisory Committee quarterly and prepares agendas for both meetings. The Community Development Department also assists with meetings with the Airport Advisory Commission every other month and assists with grant management for Airport Capital Improvement Projects and reporting to the Federal Aviation Administration. Particulary, The Community Development has helped with the Slurry Project Design and Construction.
Table 5
Code Enforcement Violation Cases (2018 – 2022)
2018 2019 2020 2021 2022
6 8 12 77 48
Diagram 4
C. Project Review
The City has reviewed a variety of projects that impact land use, community design and other elements of the General Plan. The following is a summary of projects and plans, both City- sponsored and privately driven, that were reviewed by either the City Council and/or Planning Commission during 2022.
• Updated the City’s General Plan Economic Development Element.
IV. GRANTS
The City has been working on several grants to generate housing and promote a livable community. The grants are highlighted in Table 6. 0 10 20 30 40 50 60 70 80 90
2018
2019
2020
2021
2022
Code Enforcement Case (2028-2022)
CITY OF KING
2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
PAGE 13 OF 14
Table 6
Grants
Grant
Funding Purpose Status Grant Amount
Cal Fire
Wildfire Grant
The Project will focus on
protecting King City, the
adjacent communities,
including the Pine Canyon,
structures (e.g., houses),
infrastructure, and the Salinas
River and San Lorenzo Creek
corridor. This Plan will address
innovative nature-based
solutions to reduce disasters
caused by climate change,
such as drought, wildfires,
recharge groundwater, and
pollution control.
Approved $224,000
SB 1 Phase 1 of MMTC. Engineer
and design of temporary
platform.
During 2022, the City conducted a
stakeholder’s meeting to collaborate on
funding, submitted draft engineering
plans to Union Pacific, worked with
Amtrak to establish an estimated
timeframe to provide passenger service
in King City and submitted an ITIP grant
to help fund the accelerated rail
platform.
$1,475,000.00
SB 2 Update
LUE/Prepare ADU Ordinance
$160,000.00
LEAP Update Housing Element Approved $65,000.00
REAP Update various General Plan
policies related to
attracting housing.
Approved $65,000.00
PHLA Various Housing Projects,
including providing housing,
including rapid rehousing.
Approved $134,000/year.$805,000/5 yrs.
LHLA Regional Housing Trusts.
Work with the County and
other cities to support a
regional housing trust.
County discussing applying and leading
the effort on this funding source.
City’s portion presently unknown.
Prop. 68 Construction of the Plaza Park
at 332 Broadway
City received funding and a contractor
has been selected, as of 2023.
$2,135,000
City Façade
Grant
Staff is working with
businesses/property owners
within the Historic Downtown
on providing grants
Ongoing process City awards a $12,500 grant for façade
improvements and $2,500 for business
signs.
Airport
Improvement
Program
Federal grant program for
improvements to public-use
airports
Approved to Rehabilitate Taxiway $355,500
V. CONCLUSION
The General Plan Progress Report illustrates activities undertaken by the City of King in
CITY OF KING
2022 GENERAL PLAN ANNUAL PROGRESS REPORT/HOUSING ELEMENT ANNUAL REPORT MARCH 28, 2023
PAGE 14 OF 14
2022 that worked toward implementing the City's General Plan. The City has worked to progressively implement the policies outlined in each element of the City's guiding planning document as outlined in the various sections of this Progress Report. The General Plan represents the community's collective vision for preserving and improving the quality of life in the City. As noted by the accomplishments set forth in this document over the course of 2022, the City has implemented many of the collective goals and policies identified in the General Plan. The ideas, proposals and suggestions that have come to the City have all furthered the City's goal to preserve important local resources, improve the local economy, provide a variety of housing and improve the quality of life for the community.
Item No. 9(E)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER
RE: CONSIDERATION OF COMMISSION AND COMMITTEE
APPOINTMENTS
RECOMMENDATION:
City Council adopt a Resolution: 1) reappointing David LeBarre and Chris Madson to the Airport Advisory Committee; 2) reappointing David Nuck and Steve Wilson to the Planning Commission; 3) reappointing Trina Hearne and Cheryl Harrison to the Parks and Recreation Commission; 4) appointing Joshua Zamora to the Parks and Recreation Commission; and 5) appointing Margarita Lopez to the Budget Advisory Committee.
BACKGROUND:
In 2016, the City Council established new staggered terms for each of the commissions, committees and boards. Terms expire on March 31st of odd numbered years. As a result, a number of commissioner terms are now expiring.
DISCUSSION:
The City has received applications from the following individuals to be reappointed:
David J LeBarre, Airport Advisory Committee
Chris Madson, Airport Advisory Committee
David Nuck, Planning Commission
Steve Wilson, Planning Commission
Trina Hearne, Parks and Recreation Commission
Cheryl Harrison, Parks and Recreation Commission
RESOLUTION NO. 2023-4936
A RESOLUTION OF CITY COUNCIL OF CITY OF KING, CALIFORNIA APPOINTING
COMMISSION, COMMITTEE AND BOARD MEMBERS
WHEREAS, consistent with the State Law, City of King Municipal Code and City Charter, City Council has the authority to appoint Commission, Committee and Board Members for the City of King; and
WHEREAS, due to the expiration of terms, there are vacancies on Commissions, Committees and Boards; and
WHEREAS, the vacancies were duly publicized to the community; and WHEREAS, applications were received by existing members for reappointment and from other members of the public for appointment; and
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of King, California that David LeBarre and Chris Madson are hereby appointed to the Airport Advisory Committee; 2) David Nuck and Steve Wilson to the Planning Commission; 3) Trina Hearne and Cheryl Harrison to the Parks and Recreation Commission; 4) Joshua Zamora to the Parks and Recreation Commission; and 5) Margarita Lopez to the Budget Advisory Committee.
PASSED AND ADOPTED at a regular meeting of the City Council on the 28 th day of
March, 2023, by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
_________________________________
Mike LeBarre, Mayor
ATTEST:
__________________________________
Erica Sonne, City Clerk
APPROVED AS TO FORM:
__________________________________
Roy Santos, City Attorney
Item No. 9 (F)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER
RE: CONSIDERATION OF SUPPORT FOR STATE FINANCIAL
RELIEF PACKAGE FOR CALIFORNIA HOSPITALS
RECOMMENDATION:
It is recommended the City Council approve and authorize the Mayor to sign a letter of support to Governor Newsom for a one-time financial relief package in 2023 for California hospitals.
BACKGROUND:
The City has been requested by Senator Caballero’s Office to support a one-time relief package for California’s hospitals by sending a letter to Governor Newsom.
The proposed letter is attached for consideration.
DISCUSSION:
There are a number of distressed hospitals in California under threat of closing.
This effort is designed to protect access to care and stabilize the health care delivery system for those most vulnerable. The overall proposal involves a onetime relief package in 2023 followed by structural rate increases to help prevent future crises. As you know, financial stability is particularly challenging for small local hospitals, such as Mee Memorial. Staff contacted the Executive Director of Mee Memorial Hospital, who confirmed they are supportive of this effort.
COST ANALYSIS:
There is no cost impact to the City from the recommended action.
ENVIRONMENTAL REVIEW:
The letter of support is not a “project” for the purposes of the California Environmental Quality Act (CEQA) as it does not have the potential for resulting
Exhibit 1
Item No. 9(G)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OCTAVIO HURTADO, PE, PUBLIC WORKS DIRECTOR/CITY
ENGINEER
RE: CONSIDERATION OF AWARD OF VISITOR AND HISTORY
CENTER REMODEL PROJECT (PHASE 1), PURSUANT TO
SECTION 15301 OF THE CEQA GUIDELINES
RECOMMENDATION:
It is recommended the City Council: 1) award the Visitor and History Center Demo and Rough Carpentry Project (Phase 1) to the low bidder Two Team Construction Inc., in the amount of $89,000; 2) authorize the City Manager to approve change orders up to 10%; and 3) adopt a finding of a Categorical Exemption, pursuant to Section 15301 of the CEQA Guidelines.
BACKGROUND:
In 2017, the City Council approved a draft Downtown Streetscape Conceptual Plan, which included a proposal to create a downtown plaza on the property at the northeast corner of Broadway Street and Vanderhurst Avenue. At the February 13, 2018 meeting, the City Council approved a purchase and sale agreement to acquire the property. At the April 9, 2019 meeting, the City Council then approved a contract with RRM Design Group to prepare conceptual design for the downtown plaza project. The results were presented at the September 10, 2019 meeting and a preferred design option was approved by the City Council.
The property includes three parcels. The downtown plaza is proposed to be constructed on the front two parcels. Demolition of the front building has recently been completed. Staff proposed to convert the rear building at 110 N.
Vanderhurst Avenue to a Visitor and History Center. A number of planning meetings were held with the Chamber of Commerce & Agriculture, local historians John and Karen Jernigan and King City in Bloom, the San Antonio Valley Historical Association and MCARLM to discuss coordination of the project.
CITY COUNCIL
CONSIDERATION OF AWARD OF VISITOR AND HISTORY CENTER
REMODEL PROJECT (PHASE 1), PURSUANT TO SECTION 15301 OF THE
CEQA GUIDELINES
MARCH 28, 2023
PAGE 2 OF 5
At the February 22, 2022 meeting, the City Council approved an agreement with Reiss Design Studio to pepare design of renovation of the building. Staff believes a feasible conceptual plan for renovation of the facility has been developed.
Improvement Plans and Specifications were put out to bid for the Visitor and History Center Remodel Project. The project consists of remodeling the existing 1100 SF historical building located at 110 N. Vanderhurst Avenue. The remodel will include a new interior layout, new mechanical system, and modifications to the exterior elevations to bring back the historical character of the original building.
The project bids came in over the budgeted amount for this project. The existing building is in poor condition and will require gutting the building down to the existing structural wall and ceiling. After meeting with the apparent low bidder, bids came in in occordance to the uncertaincies of the existing conditions.
The City rejected the bids and decided to phase the project. It is staff’s recommendation to move forward with the first phase of the project which include necessary interior demolition and rough carpentry of the new interior layout. This will allow subconsultants to provide more competative bids and reduce the cost of construction.
CITY COUNCIL
CONSIDERATION OF AWARD OF VISITOR AND HISTORY CENTER
REMODEL PROJECT (PHASE 1), PURSUANT TO SECTION 15301 OF THE
CEQA GUIDELINES
MARCH 28, 2023
PAGE 3 OF 5
DISCUSSION:
The project includes the following:
• Provide dumpster for debris and proper disposal.
• Remove all sheetrock and insulation, demo as per plans. • Saw cut concrete and remove for new plumbing.
• Plumb and vent for new location of plumbing fixtures. • Pour new concrete back after inspection of new plumbing. • Strip existing roof, make visual inspection and repair if needed.
Make all roof penetrations in preparation for new roof. • Provide all necessary materials as needed for the rough framing of new walls and supports per plans.
• Frame in all new walls, posts, and supports as per plans. • Window frames to be exposed, to determine window options.
Window openings shall remain secure until windows are installed. (Windows are not part of this Contract)
• Frame ceiling in as needed for hard lid.
• Install all parapet bracing and kickers to roof and hardware as per plans.
• Install new electrical panel and run new feed to new panel in new interior center wall as plans (saw cut concrete jack hammer out install conduit and pour concrete back.
The City solicited and received the following bids:
Contractor
Chris Madson Construction Inc $ 96,000.00
Two Team Construction Inc. $ 89,000.00
Rod Wadsworth Construction $110,000.00
Staff believes this is a good bid for the scope of work defined.
Staff recommends the City Council award a modified time and materials contract for Visitor and History Center Demo and Rough Carpentry (Phase 1) Project to the low bidder, Two Team Construction, in the amount not to exceed $89,000.00 and authorize the City Manager to approve change orders up to 10%.
CITY COUNCIL
CONSIDERATION OF AWARD OF VISITOR AND HISTORY CENTER
REMODEL PROJECT (PHASE 1), PURSUANT TO SECTION 15301 OF THE
CEQA GUIDELINES
MARCH 28, 2023
PAGE 4 OF 5
COST ANALYSIS:
Budgeted funds for the project are as follows:
Capital Improvement Project Funds $100,000
ARPA $150,000
T-Mobile Grant $50,000
Total $300,000
Approximately $75,000 was expended on design services. Therefore, remaining existing funding is approximately $225,000.
Staff believes moving forward with the demolition of the interior walls and moving forward with initial rough framing of the roof and walls will allow for identifying a more accurate scope of work for each construction trade and subsequently allow for more competative bids.
ENVIRONMENTAL REVIEW:
Staff has performed a preliminary environmental assessment of this project and has determined that if it falls within the Categorical Exemption set forth in Section 15301 of the CEQA guidelines because the contract is for the maintenance and repair of existing streets, which will not result in the expansion of capacity of these streets. Furthermore, staff has determined that none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, section 15300.2 apply to this project.
ALTERNATIVES:
The following alternatives are presented for Council consideration:
1. Award Phase 1 - Visitor and History Center Demo and Rough Carpentry (Phase 1) to the low bidder, Two Team Construction Inc. in the proposed amount of $89,000;
2. Reject bids and solicit new bids:
3. Do not award the Visitor and History Center Project;
4. Do not award the Visitor and History Center Project and direct staff to solicit new bids;
5. Provide staff other direction.
Exhibit 1
Item No. 9 (H)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER
RE: CONSIDERATION OF OPPOSITION TO BANS ON RODEOS IN
CALIFORNIA
RECOMMENDATION:
It is recommended the City Council adopt a Resolution opposing regulations that would ban rodeos in California.
BACKGROUND:
At the February 14, 2023 meeting, Council Member Cullen reported on efforts by the City of Los Angeles to ban rodeos. The City Council expressed concerns that additional bans could be proposed in other areas of the State. As a result, the City Council directed staff to prepare a Resolution for consideration that would oppose any proposed bans on rodeos in California.
DISCUSSION:
The City Council of the City of Los Angeles is considering an Ordinance that would ban rodeos in Los Angeles. The Ordinance has been proposed by animal activists and would ban the use of electric prods, shocking devices, flank or bucking straps, wire tie-downs, sharpened or fixed spurs and rowels from rodeos or similar events.
Opponents argue that sufficient protections for the safety of livestock and contestants already exist, many businesses depend upon rodeos and professional bull riding, the Ordinance will result in unintended consequences to other events and activities involving livestock, and efforts to promote bans on rodeos will extend to other areas of California in an attempt to achieve a statewide ban.
A Resolution is attached for City Council consideration, which supports protection of animals but opposes regulations that would effectively ban rodeos in
RESOLUTION NO. 2023-4934
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF KING
OPPOSING REGULATIONS THAT WOULD BAN RODEOS IN CALIFORNIA WHEREAS, the City Council of the City of Los Angeles has proposed an Ordinance banning rodeos in Los Angeles; and
WHEREAS, efforts to ban rodeos may extend to other areas of California aimed at an eventual statewide ban on rodeos; and
WHEREAS, many businesses rely on rodeos and professional bull riding events; and
WHEREAS, the California penal code and Professional Rodeo Cowboys Association have existing regulations and rules in place to protect livestock and contestants; and
WHEREAS, rodeos are important events to the Salinas Valley Fairgrounds and local community; and
WHEREAS, the City Council desires to protect rodeos and the western heritage.
NOW THEREFORE, BE IT RESOLVED THAT the City Council of the City of King supports efforts to protect the safety of livestock but opposes efforts to effectively ban rodeos and other western sporting events in California; BE IT FURTHER RESOLVED THAT the City Council of the City of King authorizes staff to share the City of King position on rodeo bans in support of any advocacy efforts to oppose a proposed ban on rodeos in California.
PASSED AND ADOPTED at a regular meeting of the City Council on the 28th day of March, 2023, by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
_____________________________
Mike LeBarre, Mayor
ATTEST:
_________________________________
Erica Sonne, City Clerk
APPROVED AS TO FORM:
__________________________________
Roy Santos, City Attorney
Item No. 9 (I)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER
RE: CONSIDERATION OF WASTEWATER TREATMENT PLANT
AND RECYCLED WATER PROJECT STATE WATER
RESOURCES CONTROL BOARD FINANCIAL ASSISTANCE
AUTHORIZING RESOLUTION
RECOMMENDATION:
It is recommended the City Council: 1) adopt a Resolution designating the City Manager as the authorized representative to execute all documents necessary for the application and approval of financial assistance from the State Water Resources Control Board for the King City Wastewater Treatment Plant and Recycled Water Project; and 2) direct staff to submit an application for full grant funding for construction of the project.
BACKGROUND:
Staff have been working on preparing an application to the State Water Resources Control Board for financial assistance to construct the Wastewater Treatment Plant and Recycled Water Project. As part of the process, the City is required to submit with the application a Resolution granting authority for submittal of the application and execution of all documents if the financial assistance is approved.
DISCUSSION:
It is recommended that the City Manager be designated as the authorized representative for the grant application and execution of all documents necessary to obtain the financial assistance. A Resolution based on a template provided by the State Water Resources Control Board is attached for City Council consideration.
RESOLUTION NO. 2023-4935
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF KING, CALIFORNIA,
DESIGNATING THE AUTHORIZED REPRESENTATIVE TO SUBMIT AND EXECUTE AN
APPLICATION AND FINANCING AGREEMENT WITH THE STATE WATER RESOURCES
CONTROL BOARD FOR THE KING CITY WASTEWATER TREATMENT PLANT
AND RECYCLED WATER PROJECT
WHEREAS, the City of King has prepared a Wastewater Treatment Facilities Plan and is under design of a new Wastewater Treatment Plant to address the community’s needs and meet State standards and regulations for wastewater treatment; and WHEREAS, the project includes a proposed tertiary treatment facility to generate recycled water in order to address community water supply needs and to mitigate the impact of future drought conditions on the community’s water demand; and WHEREAS, King City is a disadvantaged and underserved community without the financial capability of funding a capital infrastructure project of this size and magnitude; and WHEREAS, the City of King is submitting an application for financial assistance to the State Water Resources Control Board to fund construction of the King City Wastewater Treatment Plant and Recycled Water Project to address critical health and safety needs.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of King as follows:
1. The City Manager (the “Authorized Representative”) or designee is hereby authorized and directed to sign and file, for and on behalf of the Entity, a Financial Assistance Application for a financing agreement from the State Water Resources Control Board for the planning, design, and construction of the King City Wastewater Treatment Plant and Recycled Water Project (the “Project”).
2. This Authorized Representative, or his/her designee, is designated to provide the assurances, certifications, and commitments required for the financial assistance application, including executing a financial assistance agreement from the State Water Resources Control Board and any amendments or changes thereto.
3. The Authorized Representative, or his/her designee, is designated to represent the Entity in carrying out the Entity’s responsibilities under the financing agreement, including certifying disbursement requests on behalf of the Entity and compliance with applicable state and federal laws.
This resolution was passed and adopted this 28th day of March, 2023 by the following vote:
AYES, Council Members:
NAYS, Council Members:
ABSENT, Council Members:
ABSTAIN, Council Members:
APPROVED:
______________________________
Mike LeBarre, Mayor
ATTEST:
__________________________________
Erica Sonne, City Clerk
APPROVED AS TO FORM:
__________________________________
Roy Santos, City Attorney
CERTIFICATION
I do hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the City Council of the City of King held on March 28, 2023. (Name, Signature, and Seal of the Clerk or Authorized Record Keeper of the Governing Board of the Agency)
Item No. 9 (J)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER
RE: CONSIDERATION OF DEBT MANAGEMENT POLICY
RECOMMENDATION:
It is recommended the City Council approve the proposed Debt Management Policy.
BACKGROUND:
Staff has been working on an application to the State Water Resources Control Board for financial assistance to construct the Wastewater Treatment Plant and Recycled Water Project. As part of the application process, the City is required to have in place a debt management policy. As a result, the attached policy has been developed by the Director of Finance and is recommended for approval.
DISCUSSION:
The purpose of the debt management policy is to establish objectives, parameters and guidelines for responsibly issuing and administering the City’s debt. Prudent management of the City’s debt program is necessary to achieve cost-effective access to the capital markets and demonstrates a commitment to long-term financial planning. The proposed policy sets forth objectives, authority, types of debt, purposes of debt, debt capacity, debt structure and debt administration.
Since the General Fund debt has been retired, the only existing City debt at this time is in the Sewer Fund. With plans for the new Wastewater Treatment Plant and Recycled Water Project, additional debt issuance may become necessary to finance a portion of the project costs.
COST ANALYSIS:
There is no cost impact to the City from the recommended action.
Policy Number:
028
Policy Name:
DEBT MANAGEMENT
Issued:
3/28/23
Revised:
Policy Purpose:
The purpose of this policy is to establish guidelines for issuance and administration of City debt.
To Whom Does This Policy Apply:
All City employees associated with City debt issuance and administration.
Issued By:
Steven Adams, City Manager
Date approved by the City Council: 03/28/23
Exhibit 1
King City Issue 3/28/23 Page 1 of 12 028 Debt Management I. PURPOSE
The purpose of this policy is to establish prudent guidelines for issuing and administering City debt.
II. POLICY
This Debt Management Policy establishes objectives, parameters, and guidelines for responsibly issuing and administering the City’s debt. Prudent management of the City’s debt program is necessary to achieve cost-effective access to the capital markets and demonstrates a commitment to long-term financial planning.
III. SCOPE
These policies establish the restrictions within which the City of King and the City of King Public Financing Authority, on behalf of the City, may issue debt.
Additionally, these policies apply to debt issued by the City on behalf of assessment, community facilities, or other special districts, as well as conduit debt.
IV. DEBT MANAGEMENT OBJECTIVES
This policy sets forth key objectives for the City in issuing and administering the City’s debt, which are to:
• Maintain the City’s sound financial position.
• Minimize debt service and issuance costs.
• Maintain access to cost-effective borrowing.
• Achieve and maintain highest reasonable credit rating. • Ensure full and timely repayment of debt.
• Maintain full and complete financial disclosure and reporting. • Ensure compliance with State and Federal laws and regulations.
V. GOVERNING AUTHORITY AND RESPONSIBILITY
A. Legal Authority
The City’s debt portfolio for all City funds shall be administered in conformance with all applicable Federal, State, and other legal requirements including the City Charter. The City will comply with applicable law as it pertains to the maximum term of debt and the procedures for levying and imposing any related taxes, assessments, rates, and charges.
King City Issue 3/28/23 Page 2 of 12 028 Debt Management B. Delegation of Authority
The City Council has assigned duties to the Finance Director for authorizing, managing, and coordinating activities related to the structure, issuance, and administration of the City’s long-term and short-term debt.
No debt obligations shall be presented to the City Council, including capital leases, for their authorization without a joint assessment and approval by the City Manager and Finance Director. No department shall directly issue debt and departments planning debt-financed capital programs or equipment acquisitions will work in close coordination with the Finance Department and the City Manager’s Office to provide information and facilitate the issuance and ongoing administration of debt.
C. Point of Contact
The Finance Director shall be responsible for maintaining good communication with rating agencies, investors, other service providers, and the general public regarding the City’s financial condition, and will enforce a policy of full disclosure.
D. Policy Approval and Review
This Debt Management Policy is an official policy of the City, approved by the City Council. The Finance Department shall conduct an annual review of this policy and recommend amendments deemed necessary and appropriate.
E. Annual Debt Report
The Finance Department shall prepare an annual report to the City Council containing a summary of the City’s current credit ratings, and outstanding and newly issued debt. This report shall be presented either separately or within another financial report.
F. Professional Assistance
The Finance Director shall have the authority to periodically recommend to the City Council the selection of service providers as necessary to meet legal requirements and minimize debt costs. Such services may include financial advisory, underwriting, trustee, verification agent, escrow agent, arbitrage consulting, special tax consulting, and bond counsel. To achieve appropriate balance between service and cost, the City is authorized to select such service providers through sole source selection or a competitive process using a Request for Proposals.
King City Issue 3/28/23 Page 3 of 12 028 Debt Management G. Method of Sale
Except to the extent a competitive bidding process is required by law, the Finance Director shall determine the most appropriate manner in which to offer any securities to investors. The City’s preferred method of sale is by competitive bid. However, other methods such as negotiated sale and private placement may be considered on a case-by-case basis.
VI. TYPES OF DEBT
A. Assessment Bonds
Proceeds from Assessment Bonds may be used to finance local public improvements and are repaid with taxes assessed on the parcels of land that benefit from the improvements. Local streets, streetlights, landscaping, sidewalks and sanitary sewers are some examples of local improvements commonly financed by Assessment Bonds.
B. General Obligation (GO) Bonds
The City may issue GO Bonds with two-thirds approval of a popular vote as stated in the California State Constitution (Article XVI, Section 18). GO Bonds are secured by a pledge of the full faith and credit of the City, or by a levy on property taxes to pay the debt service. GO Bonds are used to finance the acquisition, construction, or improvement of public facilities such as parks and public safety facilities.
C. Pension Obligation Bonds
Pension Obligation Bonds may be issued to finance all or part of the City’s unfunded pension liability, and are a general obligation of the City.
Typically, these bonds are issued at an interest rate which is lower than that being charged by CalPERS, the City’s pension administrator.
D. Enterprise Revenue Bonds
Enterprise Revenue Bonds may be issued to finance facilities for a revenue-producing enterprise and are payable from revenue sources generated and pledged by that enterprise. Water, sewer, refuse, storm water, and parking are examples of revenue producing enterprises within the City.
E. Lease Revenue Bonds
Lease Revenue Bonds are typically issued by the City of King Public Financing Authority, on behalf of the City. They are secured by and King City Issue 3/28/23 Page 4 of 12 028 Debt Management payable from a pledge of revenues consisting primarily of lease payments on the capital project being financed. The City’s General Fund is obligated to pay these lease payments.
F. Refunding Bonds
Pursuant to the California Government Code and various other financing statutes, the City is authorized to issue bonds for the purpose of refunding any long-term obligation of the City, provided it produces economic benefit to the City.
G. Conduit Financing Bonds
Conduit financing is a mechanism for other governmental entities, nonprofit agencies, or private companies to fund projects which provide a clear public benefit through the issuance of tax-exempt municipal bonds.
These are essentially revenue bonds payable solely from the loan repayments received from the borrower under the loan agreement, for which the City has no liability for debt service. They may also be known as private activity or pass- through bonds. The City may issue Conduit Financing Bonds for projects such as schools, hospitals, universities, public works, housing and industrial development. In such cases, the City will take reasonable steps to confirm the financial feasibility of the project to be financed and the financial solvency of the borrower.
H. Certificates of Participation (COP)
COPs are a form of lease revenue bond which permits the investor to participate in a stream of lease payments, installment payments, or loan payments relating to the acquisition or construction of specific equipment, land, or facilities. The City is obligated to make these debt service payments.
I. Lease Financing
The City may finance a capital asset by leasing it directly from the vendor or leasing company under a long-term agreement. This is essentially a lease-purchase contract with the lessor receiving a portion of each rental payment as tax-exempt interest.
J. Bank/Private Loans
The City may borrow directly through a loan with a commercial bank, Letter of Credit, or Line of Credit with a commercial bank, State revolving loan program, or other governmental agency. Each loan will have a specific purpose.
King City Issue 3/28/23 Page 5 of 12 028 Debt Management K. Tax Allocation Bonds
Before dissolution of California Redevelopment Agencies (RDAs) in 2011, the City of King Community Development Agency (CDA) issued Tax Allocation Bonds using tax increment funds as a pledge for repayment. The taxes pledged to the repayment came from the increase of assessed value over and above a pre-established base. Dissolution of RDAs in 2011 has ended this type of debt from being issued by California cities and counties.
L. City of King Internal Financing Pool
The Internal Financing Pool provides loans to City departments or funds for significant one-time purchases, such as large vehicles. Such loans are repaid by applicable City departments or funds with interest on an annual basis with the principal amortized evenly over a period of at least five (5) years but not exceeding ten (10) years. The interest rate levied is the City’s pooled LAIF investments rate.
M. Other Obligations
There may be special circumstances when other forms of debt are appropriate and may be evaluated on a case-by-case basis. Such other forms include, but are not limited to, non-enterprise revenue bonds, bond anticipation notes, grant anticipation notes, tax and revenue anticipation notes, and judgment or settlement obligation bonds.
VII. PURPOSE OF DEBT
A. Integration with the City’s Capital Improvement Plan The City is committed to long-term financial planning, including capital planning. This policy will be used in conjunction with the City’s capital budget and the capital improvement plan. The City shall strive to fund the upkeep and maintenance of its infrastructure and facilities due to normal wear and tear through its available operating revenues.
B. Long-Term Debt
Long-term debt may be used to finance the purchase or improvement of land, infrastructure, facilities, or equipment for which it is appropriate to spread these costs over more than one budget year. Long-term debt may also cover capitalized interest, costs of issuance, required reserves, and any other financing-related costs which may be legally capitalized.
Long- term debt may not be used to fund City operating costs.
King City Issue 3/28/23 Page 6 of 12 028 Debt Management C. Short-Term Debt
Short-term borrowing, such as commercial paper and lines of credit, may be used as an interim source of funding in anticipation of long-term borrowing. Short-term debt is defined as debt repaid in twelve (12) months or less and may be issued for the same purpose as long-term debt, including capitalized interest and other financing-related costs.
Short-term debt, such as tax and revenue anticipation notes, may be issued to address justifiable cash flow requirements for short-term operating needs to provide necessary public services.
D. Refunding
Periodic reviews of existing debt will be undertaken to identify refunding opportunities. Refunding will be considered (within Federal tax law constraints) if and when there is a net benefit of the refunding. In general, refundings which produce a net present value savings of at least three percent (3%) of the refunded debt will be considered economically viable. Refundings which produce a net present value savings of less than three percent (3%) will be considered on a case-bycase basis to achieve City goals such as changes in covenants, call provisions, operational flexibility, tax status, issuer, or the debt service profile. Refundings with negative savings will not be considered unless there is a compelling public policy objective that is accomplished by retiring the debt. The City may purchase its own bonds in the open market for the purpose of retiring the obligation when the purchase is cost effective.
E. Lease Financing
The City may finance a capital asset by leasing it directly from the vendor or leasing company, with the lessor receiving a portion of each rental payment as tax-exempt interest.
VIII. DEBT CAPACITY
It is the policy of the City of King that aggregate debt service payments funded from General Fund sources shall be no greater than 10% of Primary General Fund revenues as reflected in the prior year adopted budget. Payments on bonds that are tied to a specified revenue stream other than General Fund sources (e.g., enterprise revenue bonds, tax allocation bonds, and assessment bonds) are not subject to this 10% limit. Each proposed financing will be individually assessed by the Finance Director and subject to the approval policies contained herein.
King City Issue 3/28/23 Page 7 of 12 028 Debt Management IX. DEBT STRUCTURE FEATURES
A. Debt Repayment
The City will structure its debt issues so that the maturity of the debt does not exceed the economic or useful life of the capital project which is financed.
B. Maximum Maturity
The California Constitution allows for the issuance of long-term debt of up to forty 40) years. The City’s standard maximum maturity is thirty (30) years, but up to forty (40) years may be acceptable depending on cash flow assumptions, construction timeline, and remaining useful life of the asset being financed.
C. Credit Quality
The City seeks to obtain and maintain the highest possible credit ratings when required for issuing long-term and short-term debt.
D. Fixed-Rate Debt
Fixed-rate debt shall be the desired method of pricing.
E. Variable-Rate Debt
The City may choose to issue debt that pays a rate of interest that varies according to a pre-determined formula or index. There may be situations in which the City will benefit from variable-rate debt.
F. Call Options and Premium Provisions
Call Options or optional redemption provisions can enable the City to partially or totally repay a bond issue before its stated maturity. These may be considered on a case-by-case basis when issuing bonds, provided they enhance the marketability of the bonds, ensure flexibility related to potential early redemption, or foster future refunding options.
The potential for additional costs, such as a call premium or potentially higher interest rates, will be evaluated in the decision to redeem the bonds.
G. Credit Enhancement
To establish or improve the credit rating on a proposed debt issuance, the City may purchase credit enhancement such as bond insurance, surety policy, or letter of credit. The Finance Director will consider the King City Issue 3/28/23 Page 8 of 12 028 Debt Management use of credit enhancement if it reduces the overall cost of the proposed financing or furthers the City’s overall financial objectives.
X. DEBT ADMINISTRATION
The City’s Finance Department shall maintain written directives and procedures detailing required actions to certify compliance with local, State, and Federal regulations. The City is committed to full and complete financial disclosure in accordance with the requirements established by the Securities and Exchange Commission (SEC) rule 15c2-12 and the Municipal Securities Rulemaking Board. The City is also committed to fully supporting requests from rating agencies, institutional and individual investors, other governmental entities, and to the general public to share clear, timely, and correct financial information.
In addition to financial disclosure and arbitrage rebate compliance, once bonds are issued the City is responsible for verifying compliance with all activities, agreements, and requirements outlined in the bond documents on an ongoing basis. This typically includes: ensuring an annual appropriation to meet debt service payments; that relevant taxes, rates, and fees are levied and collected at a level sufficient to meet indenture requirements and debt service payments; the timely payment of debt service to a trustee or paying agent is completed; and compliance with insurance and other requirements. All investments of bond proceeds shall adhere to the City’s Investment Policy which is approved annually by the City Council, Federal tax requirements, and with the requirements contained in the bond documents. Investments related to the bond proceeds shall not allow security types or credit standards less than those stated in the City’s Investment Policy.
XI. GLOSSARY OF TERMS
Advance Refunding: A refunding that occurs more than ninety (90) days in advance of the first optional redemption date. All covenants and restrictions of the refunded bond indenture are extinguished through an Advance Refunding.
Under current IRS regulations, tax-exempt bonds issued after December 31, 1985 are permitted only one Advance Refunding.
Arbitrage: Generally, tax-exempt bond issues are subject to arbitrage rebate requirements, which require that any profit or “arbitrage” be “rebated” to the Federal government in the amount of the excess of the amount earned on investments purchased with gross proceeds of the bonds over the amount which would have been earned if such investments were invested at a rate equal to the yield on the bonds. A rebate computation and payment, if applicable, is generally required to be made every five (5) years and upon final redemption or maturity of the bonds. Failure to comply with these requirements could lead to substantial late filing penalties and interest and/or the loss of tax-exempt status for the bonds.
King City Issue 3/28/23 Page 9 of 12 028 Debt Management Bond Counsel: A law firm retained by the bond issuer to give a legal opinion that the bond issuer is authorized to issue the proposed securities, the bond issuer has met all legal requirements necessary for issuance, and interest on the proposed securities will be exempt from Federal income taxation, and where applicable from State and local taxation. Usually, Bond Counsel will prepare authorizing resolutions and ordinances, trust indentures, and other bond documents with the exception of the Official Statement.
Bond Insurance: An insurance policy which guarantees the timely payment of principal and interest, of either an entire bond issue, or on one or more specified maturities. In exchange for payment of the Bond Insurance premium, a higher Credit Rating is assigned to the insured bonds, and a lower cost of funds is attained. With a Competitive Sale, generally the bidding dealer bears the cost of insurance to the benefit of the firm’s bid. The bond issuer pays the cost of Bond Insurance from bond proceeds with a Negotiated Sale.
California Debt and Investment Advisory Commission (CDIAC): A State commission established to provide oversight with respect to public debt and investment activities. It serves as the State’s clearinghouse for information on public debt issuance and local investment practices. CDIAC also provides policy guidance on debt and investment matters.
Call Provisions: The terms of the bond giving the issuer the right to redeem all or a portion of a bond prior to its stated date of maturity at a specific price, usually at or above par.
Capitalized Interest: Capitalized Interest is a portion of the proceeds of an issue which is set aside to pay interest on the bonds for a specified period of time.
Interest is commonly capitalized during the construction period of a revenueproducing project or a project financed with the proceeds of lease revenue bonds whereby the facility securing the lease payments must be available for use and occupancy before lease payments may commence.
Commercial Paper: Short-term (1 to 270 days) promissory notes usually issued to provide for interim financing of projects through the construction period and backed by a Letter or Line of Credit from a commercial bank. Following the completion of the projects, principal and interest due on Commercial Paper is often redeemed through the issuance of long-term refunding bonds.
Competitive Bidding Process: The sale of a new issue of bonds by an issuer through a bidding process where Underwriters are awarded the bonds on the basis of offering the lowest cost of funds for the issuer, usually measured on a True Interest Cost basis. The bid parameters for the public sale are established in the notice of sale or notice inviting bids.
King City Issue 3/28/23 Page 10 of 12 028 Debt Management Continuing Disclosure Certificate: A commitment entered into by the County for the benefit of the Underwriters and holders of certain bonds pursuant to SEC Rule 15(c)2-12 to provide continuing disclosure of specific County information.
Credit Ratings: Evaluations of the credit quality of bonds made by independent ratings services such as Moody’s Investors Service, Standard & Poor’s Ratings Services, and Fitch Ratings. Credit Ratings are intended to measure the probability of timely repayment of principal and interest on municipal securities.
Credit Ratings are assigned before issuance of the bonds, and are periodically reviewed by the rating services, or may be amended to reflect changes in the issuer’s credit position. Bonds with investment grade ratings are assigned Credit Ratings between Baa3/BBB- and Aaa/AAA.
Debt Service: The sum of principal and interest due on outstanding debt, including any required contributions to a sinking fund for term bonds. Debt Service may be computed on a bond year, fiscal year, or calendar year basis.
Derivative: Short for “Derivative investment,” a contract whose value is based on the performance of an underlying financial asset, index, or other investment.
Generally, Derivatives are risk mitigation tools. Examples include structures with Option-like or Swap-like features.
Financial Advisor: A consultant who advises the bond issuer on matters such as bond structure, timing, marketing, pricing, documentation, and Credit Ratings.
The consultant may also provide non-bond related advice relating to capital planning and investment management. Financial Advisors must be registered as an independent registered municipal advisor (“IRMA”) with the SEC.
Fixed-Rate Debt: A borrowing wherein interest is established at a fixed rate of interest for the life of the obligation.
Line of Credit: A commitment usually made by a commercial bank to provide liquidity support for issues of notes, Commercial Paper, or bonds if the issuer is unable to pay Debt Service. The timely payment of Debt Service is not guaranteed, and the agreement between the bank and the issuer of the debt may be terminated in the event of a payment default by the bond issuer, or under other certain specified events. Debt issued with a Line of Credit is assigned the short-term Credit Rating of the Line of Credit provider.
Municipal Securities Rulemaking Board (MSRB): An independent self-regulatory organization established by the Securities Acts Amendments of 1975, which is charged with primary rulemaking authority over Broker-Dealers and brokers in municipal securities. Its members represent three categories—securities firms, bank dealers, and the public—each category having equal representation on the MSRB.
King City Issue 3/28/23 Page 11 of 12 028 Debt Management Negotiated Sale: The sale of a new issue of bonds whereby the issuer selects the Underwriters in advance and negotiates the terms of the bonds, including coupons, interest rates, redemption provisions, and the Gross Spread, at the time of sale.
Official Statement: A document published by the bond issuer, and often prepared by Disclosure Counsel, which discloses material information on a new bond issue, including the purpose of the issue, source of repayment, bond covenants, as well as financial, economic, demographic, and legal characteristics of the bond issuer. The Official Statement is used by investors to determine the credit quality of the bond issue. An Official Statement is deemed preliminary prior to the determination of the interest rates on the bond issue, but is final in all other respects at the time it is circulated in its preliminary form prior to the sale of the bonds.
Private Placement: A sale in which the bonds are sold directly to institutional or private investors, rather than through a public offering. Issuers often require investors purchasing privately placed bonds to agree to restrictions as to resale through the use of a signed agreement. This is the same as a direct placement or a direct purchase. Private Placements may also involve the direct sale of a bond or other obligation to a commercial bank.
Securities and Exchange Commission (SEC): The Federal agency responsible for supervising and regulating the securities industry. In general, municipal securities are exempt from the SEC’s registration and reporting requirements.
Brokers and dealers in municipal securities, as well as independent registered municipal advisors, however, are subject to SEC regulation and oversight. The SEC also has responsibility for the approval of MSRB rules, and has jurisdiction, pursuant to SEC Rule 10b-5, over fraud in the sale of municipal securities.
SEC Rule 15(c)2-12: A regulation of the SEC which requires Underwriters participating in primary offerings of municipal securities of $1,000,000 or more (i) to obtain, review, and distribute to investors copies of the issuer’s Disclosure documents; (ii) to obtain and review a copy of an Official Statement deemed final by an issuer of the securities, except for the omission of specified information; (iii) to make available upon request, in non-competitively bid offerings, the most recent preliminary Official Statement, if any; (iv) to contract with an issuer of the securities, or its agent, to receive, within specified time periods, sufficient copies of the issuer’s final Official Statement, both to comply with this rule, and any rules of the MSRB; and (v) to provide, for a specified period of time, copies of final Official Statements to any potential customer upon request. The rule contains exemptions for Underwriters participating in certain offerings of municipal securities issued in large denominations that are sold to no more than thirty-five (35) sophisticated investors, have short-term maturities, or have short-term tender or put features. SEC Rule 15(c)2-12 also requires that Underwriters participating in a bond offering obtain from the issuer a written Continuing King City Issue 3/28/23 Page 12 of 12 028 Debt Management Disclosure Agreement to provide continuing disclosure with respect to those bonds.
Trustee: A third-party banking institution which administers the funds specified in the trust indenture or agreement and implements the remedies provided in case of default. The Trustee acts on behalf of the bondholders based on the specific requirements in each trust indenture. The Trustee may also refer to a trustee bank acting in the capacity of escrow agent with respect to refunding bonds or issuing and/or paying agent with respect to Commercial Paper or Variable Rate Debt.
Underwriter: A dealer which purchases a new issue of bonds for resale either by negotiation with the issuer or by award on the basis of a competitive bid.
Variable-Rate Debt: A borrowing wherein interest changes at intervals according to an index or formula, or is periodically (e.g., daily, weekly, or monthly) reset at the market clearing rate. This is also known as floating rate debt.
Item No. 11 (A)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER
RE: CONSIDERATION OF CANNABIS CULTIVATION TAX STUDY
RECOMMENDATION:
It is recommended the City Council1) approve and authorize the City Manager to execute a contract with HdL Companies to prepare a fiscal analysis of cannabis cultivation tax rates in a form approved by the City Attorney; and 2) appropriate $23,100 for the cost of the analysis.
BACKGROUND:
Measure J was approved by the voters in the November 2016 election, which established tax rates for cannabis cultivation, nurseries, manufacturing, and testing. Measure P was approved by the voters in the November 2020 election, which added tax rates for cannabis retail sales and distribution, as well as updated some of the provisions from the original 2016 measure.
The current tax rate for cultivation is $10.04 per square foot. The current market for cultivation is oversaturated, which has resulted in a significant decrease in price and profits and created a challenging environment for cultivation businesses to remain viable. As result, the City has received requests from existing cannabis businesses to lower tax rates. Other jurisdictions have significantly lowered their tax rates, including Monterey County.
At the January 10th meeting, City Council approved a proposed phased approach of reducing rates. The approved plan will lower rates gradually to $7 per square foot linked to increases in production in order to maintain and increase City revenues. However, production is not increasing. As a result, the City’s rates have become inconsistent with other jurisdictions and are creating a challenging competitive disadvantage for the existing and potential cannabis cultivation businesses. Staff is now concerned about the economic viability of existing businesses and continued receipt of tax revenues in the future.
CITY COUNCIL
CONSIDERATION OF CANNABIS CULTIVATION TAX STUDY
MARCH 28, 2023
PAGE 2 OF 3
DISCUSSION:
Staff believes some additional reductions in cannabis cultivation taxes will likely be necessary in order maintain the viability of local cannabis businesses. It would be helpful to determine any changes at this time in order to provide guidance to staff in developing upcoming budget projections. However, staff advocates making any decisions on tax adjustments based upon objective and impartial data.
Therefore, staff recommends the City contract with HdL Companies, the City’s cannabis consultants, to prepare a comprehensive cannabis cultivation tax rate study. It is recommended they develop recommendations for the City based on three areas, which include: 1) a comparison of tax rates in other jurisdictions; 2) the state of the cannabis market and its impact on feasible tax rates; and 3) an analysis of Vertis’ economic conditions.
The purpose of the third item would be to verify that Vertis needs the reduction in taxes and can be economically viable in the future with a lower tax rate. To do that, HdL would review the company’s profit and loss information. This data would remain confidential, but it would be used in developing conclusions on optimal changes. Staff has confirmed with Vertis that they are supportive and would cooperate in providing the requested information. A copy of the study proposal is attached.
COST ANALYSIS:
The proposed cost of the study is $23,100, which would require an additional appropriation from the General Fund unappropriated fund balance.
ENVIRONMENTAL REVIEW:
This matter is not a “project” for the purposes of the California Environmental Quality Act (CEQA) as it does not have the potential for resulting in either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment. No further action is required under CEQA for City Council action.
ALTERNATIVES:
The following alternatives are provided for City Council consideration:
1. Approve staff’s recommendations;
2. Direct staff to reduce the scope of work of the study to limit the review to only a comparison to rates in other jurisdictions and the cannabis market, which would reduce the cost of the study;
City of
King City
Cannabis Fiscal Analysis
March 6, 2023
SUBMITTED BY
HdL Companies
120 S. State College Blvd., Ste 200
Brea, CA 92821
hdlcompanies.com
CONTACT
Ajay Kolluri
T: 714.879.5000
E: [email protected]
Exhibit 1
1 Proposal for Cannabis Management Services
for the City of King City March 6, 2023
TABLE OF CONTENTS
I. COVER LETTER ........................................................................................................................... 2 II. PROPOSED SCOPE OF SERVICES ................................................................................................ 3 III. COST .......................................................................................................................................... 6 IV. OPTIONAL SERVICES .................................................................................................................. 7 V. EXPERIENCE AND RESOURCES ................................................................................................... 7 VI. REFERENCES ............................................................................................................................ 14
2 Proposal for Cannabis Management Services
for the City of King City March 6, 2023
I. COVER LETTER
March 6, 2023
Steven Adams, City Manager
City of King City
212 S Vanderhurst Ave
King City, CA 93930
Re: Proposal for Cannabis Management Services
Dear Mr. Adams,
Thank you for the opportunity to submit this proposal for cannabis management services and training for the City of King City. The enclosed scope of services provides for HdL to conduct a revenue review and fiscal analysis of a licensed cannabis cultivation business (CalGrow) to determine the impact of the City’s current tax rates and structure on the company’s viability and to provide observations, recommendations and revenue projections to inform any potential changes. The proposal also provides for attendance at a City Council meeting to discuss the report and additional hours of general consulting to be used as needed by the City.
HdL is recognized as the industry leader in the development, implementation and enforcement of cannabis management programs for local governments in California. We have partnered with over 175 California cities and counties on cannabis-related programs, including ordinance development and review, community outreach and education, merit-based application and permitting processes, cost recovery studies, compliance inspections, revenue audits, fiscal analyses and law enforcement training.
Our cannabis team has unmatched expertise, with more than 80 years’ combined experience in the development, implementation and enforcement of cannabis regulatory and tax programs.
Our team members have conducted over 11,000 cannabis compliance inspections and audits in California, Colorado and Nevada, and have reviewed, scored and processed over 1,700 cannabis business applications in the last six years in California. HdL Companies works for the benefit of public agencies and has no private-sector clients in the cannabis industry.
We look forward to the opportunity to partner with the City of King City in developing a strategy which meets your program needs. If you have any questions or require additional information, please feel free to contact me by email at [email protected] or Ajay Kolluri at [email protected] or by phone at 714.879.5000.
Sincerely,
Andy Nickerson
President, HdL Companies
3 Proposal for Cannabis Management Services
for the City of King City March 6, 2023
II. PROPOSED SCOPE OF SERVICES
The City of King City is home to a licensed cannabis cultivation company called CalGrow (listed by the Department of Cannabis Control under variations of KC DBW, LLC). CalGrow operates 5 Type 2 small indoor cultivation licenses with a combined total of 50,000 square feet of cultivation area and is also licensed as a nursery and processor.
Section 5.14.070 of the King City Municipal Code (KCMC) establishes that cannabis cultivation businesses shall be taxed at a rate of $25.00 per square foot for the first 5,000 square feet of permitted canopy space and at a rate of $10.00 per square foot for any additional canopy space thereafter. Cannabis nurseries shall be taxed at a rate of $5.00 per square foot for the first 5,000 square feet of permitted canopy space and at a rate of $2.50 per square foot for any additional canopy space thereafter for the first 3 years. The amount of taxable square footage shall be based on the maximum square footage allowed by the permit issued by the City.
CalGrow has informed the City that it is struggling financially and is having difficulty meeting its cannabis tax obligations to the City. In response the City has agreed to reduce the tax rate to $10.00 per square foot for the entirety of CalGrow’s cultivation area. However, CalGrow has asserted that this reduction is not enough to address its current economic hardship. At the same time, the currently reduced tax rates are impacting the City’s budget.
The City is now requesting that HdL Companies conduct a fiscal analysis to inform any further changes to the City’s cannabis cultivation tax rates. The report would include an optional revenue review of CalGrow’s books and financial records to provide an evidence-based understanding of the company’s financial position which would better inform the analysis.
The report would also entail interviewing CalGrow’s principals and managers and providing them with a questionnaire seeking general information regarding sales, volume, pricing, billbacks, and other factors that may inform the analysis. HdL would also provide analysis of the state cultivation market and of prevailing cultivation tax rates in the Monterey region and around the state. The analysis would include recommended tax rates and revenue projections for City budget purposes, as well as other findings and observations the City may wish to consider in its decision making.
This proposal also provides for HdL to attend a meeting of the City Council to provide a presentation on the report or to answer questions as needed, as well as additional hours of general subject matter expertise that may be used to assist the City with implementation of any recommended changes. These services are described in greater detail below.
Objective 1: Conduct a Revenue Review
HdL will conduct a revenue review of CalGrow’s operations to develop an accurate understanding of the company’s annual revenues and general financial position to inform the fiscal analysis in Objective 2. The review will evaluate books and records provided by the company and would present an informed and impartial picture of the company’s operations for assessing its general fiscal health and economic viability. 4 Proposal for Cannabis Management Services
for the City of King City March 6, 2023
To initiate the review, HdL will prepare a notification letter informing CalGrow of the impending revenue analysis, including a list of all records and documentation the operator is requested to provide. HdL recommends that the notification letter be sent by the City to communicate HdL’s authority to conduct the revenue analysis, and to encourage cooperation by the business. The list of records may include:
Accounting sales reports
P&L Statements
METRC inventory system data
Sample of six invoices
HdL Questionnaire
It is understood that this review and analysis is time-sensitive for the City and that CalGrow will be a willing to participate. CalGrow will be provided two weeks to submit the requested documents to HdL. HdL will communicate directly with CalGrow as needed to obtain the necessary records.
Once all records have been received, HdL will conduct a revenue review. We note that the revenue review is not an audit, and the level of analysis will be limited to the documentation provided by the business. HdL will apply discretion to determine the appropriate methodology depending upon the nature of the records received.
HdL will prepare a summary of estimated annual revenues for the business and will provide any related observations made during the review. HdL will use the summary to inform a fiscal analysis report to be provided under Objective 2.
Objective 2: Conduct a Fiscal Analysis
HdL shall conduct a fiscal analysis of CalGrow’s operations to help inform discussion and consideration of any further changes to the City’s cannabis cultivation tax rates and to provide revenue projections for future budgeting purposes. The analysis would seek to develop an estimate of CalGrow’s yield, pricing and revenues for the purposes of determining the impact of the City’s tax structure on the business as a percentage of gross receipts. The analysis will recommend appropriate tax rates that will ensure stable revenues for the City by allowing the business to succeed over time.
The fiscal analysis will be based upon the revenue review described in Objective 1, if that service is requested by the City. Should the City choose to move forward without the revenue review, HdL shall base the analysis on interviews with CalGrow’s managers and principals along with a questionnaire and whatever level of financial records CalGrow is willing to provide. HdL shall also utilize industry data, standard assumptions and other information derived from our own experience and research.
Once we have developed an informed picture of CalGrow’s operations, revenues and financial position, HdL shall utilize our own methodology to determine how the City’s current squarefootage tax rates equate to a percentage of gross receipts to determine how the City’s current 5 Proposal for Cannabis Management Services
for the City of King City March 6, 2023
tax rates compare with cultivation rates from other jurisdictions in the nearby region and around the state.
HdL’s analysis shall include an overview and discussion of the state cultivation market and of prevailing cultivation tax rates in the Monterey region and around the state. Our analysis will also include recommended tax rates and revenue projections for the City’s budgeting purposes, as well as other findings and observations the City may wish to consider in its decision making.
This proposal assumes that HdL will provide one initial draft report for staff to review and critique plus one iterative draft that will incorporate any requested revisions prior to providing the final report. Any additional drafts, iterations or documentation that may be requested by the City would be in addition to the costs shown in the table below and shall be billed at HdL’s hourly rate. HdL will advise the City in advance if additional requested revisions may result in potential exceedances.
HdL understands that this analysis is time-sensitive. HdL shall provide a draft analysis within 4 weeks from the start of the project. Delivery of a final report will be dependent upon interaction with the City.
Objective 3: Attendance, Support or Presentations at Meetings or Workshops HdL shall attend a meeting of the City Council to provide a presentation on the report and analysis and/or to answer questions as needed. HdL shall work with City staff to determine the scope of any presentation and to anticipate questions or areas of interest to the Council and to assist with preparing the staff report. The presentation shall include an overview of the revenue review process (if that service is requested) and an executive summary of any findings, observations or recommendations from the fiscal analysis.
This objective includes consultation with staff to develop the scope of any presentation, preparation of the presentation itself and meeting attendance. Scheduling of the meeting would be determined in consultation with City staff. This objective assumes that meeting attendance would be virtual. Physical attendance would incur an additional travel charge.
Objective 4: Technical Assistance and Subject Matter Expertise HdL will provide up to 40 hours of general consulting to be utilized on an as-needed basis at the City’s request. Such assistance may include implementing any changes or recommendations pursuant to the findings of the fiscal analysis, changes to the City’s regulatory and/or tax ordinances, technical assistance, subject matter expertise, education, monitoring of changes to State laws and regulations, participation in conference calls, responding to staff inquires via phone and email, reviewing staff reports to the City Council, assisting with responses to inquiries from the public, or other issues yet to be determined as may be requested by the City.
6 Proposal for Cannabis Management Services
for the City of King City March 6, 2023
III. COST
The proposed services are broken down into specific line items in the cost table below. This proposal does not include any additional items that are not contemplated by this scope of services. Any additional services requested by the City will be billed at HdL’s hourly rate.
Prices are valid for 90 days from the date of this proposal to allow time for consideration and negotiating a service agreement. Once under contract, prices shall be honored for the first full year, with successive years subject to an annual increase based upon the Consumer Price Index for the Los Angeles-Long Beach-Anaheim region.
Conflicts of Interest and Non-Disclosure
HdL Companies works for the benefit of public agencies and has no private-sector clients in the cannabis industry. All cannabis business information will be kept confidential by HdL and will not be shared internally beyond those HdL employees who are required to have access for purposes of conducting the work contemplated herein, or for administrative purposes as necessary.
Drafts and Final Work Products
All work products assume one initial draft for review and comment, one iterative draft to incorporate any desired changes, and one final draft for presentation or publication. Additional drafts requested by the client may result in additional charges at HdL’s hourly rate.
Scope of Service Objectives Estimated
Cost
Objective 1: Revenue Review
Flat rate, not to exceed 20 hours
$5,0001
Objective 2: Conduct a Fiscal Analysis
Flat rate, not to exceed 35 hours
$10,0001
Objective 3: Meeting Attendance
Flat rate, not to exceed 8 hours
$2,4001
Objective 4: Technical Assistance and Subject Matter Expertise Up to 20 hours at $300/hr (billed at hourly rate)
$6,0002
Travel (if and as needed for on-site meeting attendance) Hourly Rate3 TOTAL NOT TO EXCEED $23,100
1 Objective billed at flat rate. Total hours not to exceed number of hours identified. Additional hours will be billed at hourly rate (with City approval), under Objective 4. 2 Objective billed at hourly rate
3 Or at a flat rate to be determined in consultation with the City Note: All City costs may be fully recoverable from the business 7 Proposal for Cannabis Management Services
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IV. OPTIONAL SERVICES
Hourly Rates for HdL Staff
The prices in this proposal are based on the hourly rates for HdL staff as shown in the chart below. Any additional services requested by the client that are not specifically described in this proposal would be billed at the standard rate for the assigned staff person.
HdL Staff Person Title Hourly Rate
Ajay Kolluri Director $300
Matt Eaton Deputy Director of Compliance $300
Mark Lovelace Senior Policy Advisor $300
Elizabeth Eumurian Audit Manager $300
David Ross Senior Compliance Inspector $250
Michelle Shaw Compliance Inspector $235
Jeff Burris Compliance Inspector $235
Valerie Carter Senior Auditor $250
Odette Mikhail Auditor $235
Tao Lu Auditor $235
Pamela Davis Auditor $235
Eric Magana Auditor $235
Tonson Chieng Audit Analyst $225
Dante Chegini Audit Analyst $225
Jennifer Erwin Audit Analyst $225
Kristi Lervold Administrative Assistant $150
All rates current as of the date of this proposal
8 Proposal for Cannabis Management Services
for the City of King City March 6, 2023
V. EXPERIENCE AND RESOURCES
Company Profile
Founded in 1983, HdL is a consortium of three companies established to maximize local government revenues by providing audit, compliance, economic development, consulting services and software products. Our audit and consulting services include sales, use and transaction taxes, property taxes, transient occupancy taxes, and a Cannabis Management Program. The firm also provides a variety of enterprise software processing tools for business licensing, code enforcement, animal control, building permits and tracking/billing of false alarms.
HdL’s systematic and coordinated approach to revenue management and economic data analysis is currently being utilized by over 500 agencies in six states. The firm currently serves 49 counties, 311 cities and 132 transactions tax districts in California.
HdL’s key staff has extensive experience serving local government and many have previously held positions in city management, finance, planning, economic development or revenue collection. HdL is a Corporate Partner of the League of California Cities and California State Association of Counties and works extensively with the County Auditor’s Association of California, California Society of Municipal Finance Officers (CSMFO) and California Municipal Revenue and Tax Association (CMRTA) on anticipation and planning of programs to strengthen local government revenues.
This close understanding of local government needs coupled with extensive databases and advanced methodology provides for the most relevant, productive and responsive revenue recovery; forecasting; and economic services available.
Our team of professionals has over 80 years of direct experience establishing and implementing cannabis regulatory and taxation programs, including establishing land-use regulations, permit processes, staffing plans, and cost recovery fees; structuring cannabis business tax fees; regulatory compliance; financial audits; and law enforcement training. Our team has conducted over 18,000 cannabis compliance inspections and investigations in California, Colorado and Nevada.
Key Personnel
Ajay Kolluri; Director of Cannabis Services
Ajay Kolluri is the Director of Cannabis Services for HdL. Ajay is responsible for overseeing the cannabis team and the daily operations of HdL’s Cannabis Division.
Ajay previously served as Manager for the Office of Cannabis Oversight (OCO) at City of Long Beach. Working within the City Manager’s Office, Ajay was responsible for the licensing, regulation and enforcement of all commercial cannabis activity in the City, encompassing one of the largest legal cannabis markets in the state. 9 Proposal for Cannabis Management Services
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During his tenure with the OCO, Ajay oversaw the issuance over 200 cannabis business licenses, generating over $10 million in annual revenue for the City. Ajay has experience in all aspects of cannabis oversight, including public health and education, planning and zoning, building inspections, enforcement, fee development, economic analysis and revenue projections.
Prior to overseeing the OCO, Ajay worked in public finance, serving as Budget Analyst for the Department of Financial Management in the City of Long Beach. Ajay holds a Bachelor’s degree in business economics from the University of California, Santa Barbara, and a Master’s degree in public policy from the University of Michigan.
Matt Eaton; Deputy Compliance Director
Matt Eaton is the Deputy Compliance Director at HdL and plays a critical role in implementing the Cannabis Compliance Program for local agencies. Prior to joining the firm, he was a progressive law enforcement professional with 30 years’ experience conducting criminal/regulatory investigations, and corporate/individual background investigations.
While working as a Supervisory Investigator at the Colorado Department of Revenue in the Marijuana Enforcement Division (MED), Matt managed criminal investigators and civilian staff in the Denver Metro and Longmont field offices. During his six-year tenure at the MED, he conducted approximately 10,000 criminal investigations and compliance reviews, including regulatory and financial investigations. He is a subject matter expert on track and trace systems and understands the complexity of reviewing data to ensure businesses are in compliance with state and local regulations. Matt was responsible for planning, developing and implementing report and field inspection protocols for the agency. He also played an instrumental role in recommending changes to current regulations and identifying essential language for new legislation in Colorado. Matt is well known for his ability to maintain working relationships with cannabis industry leaders and external stakeholders in resolving issues.
Matt received his Bachelor of Science Degree from Biola University and maintained Police Officer Service Training (POST) certification for over 30 years in California and Colorado. He has also served as an adjunct instructor teaching law enforcement principle related to criminology, correctional processes, procedural law, interviews, interrogations and criminal evidence at AIMS Community College in Greeley, Colorado.
Mark Lovelace; Senior Policy Advisor
Mark Lovelace has 16 years of broad experience in public policy, community engagement and advocacy and is recognized as a leader in advancing the statewide discussion of medical and recreational cannabis as a legitimate policy issue in California. Mark served on the Humboldt County Board of Supervisors from 2009 through 2016 where he was instrumental in developing a comprehensive approach to regulating cannabis, including a voter-approved tax on commercial cultivation and an innovative track and trace pilot program. Mark established and co-chaired the Cannabis Working Group for the California State Association of Counties (CSAC) and helped draft CSAC’s cannabis legislative platform. 10 Proposal for Cannabis Management Services
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Mark has worked extensively with public agencies and statewide organizations on cannabis issues and has led numerous presentations, workshops and panel discussions. Prior to his time on the Board, he worked for many years as a respected advocate on land use, planning, development, resource management and environmental issues. Mark received his Bachelor of Science degree in Industrial Design from San Jose State University.
David Ross; Senior Compliance Inspector
David Ross is a Certified Fraud Examiner with 7 years of experience conducting gaming and non-gaming audits and investigations of tribal gaming facilities. David’s experience includes conducting forensic accounting investigations into cash larceny, expense reimbursement fraud, check fraud, credit card fraud, payroll fraud, wire fraud, insider trading, construction fraud in addition to litigation support.
David previously worked as Surveillance Officer and Internal Auditor for the Shingle Springs Tribal Gaming Commission, where he was responsible for analyzing financial statements for a facility with revenues exceeding $20 million per month. David also analyzed internal controls and established policies and procedures to ensure compliance with federal, state and local regulations. In addition, David conducted surveillance reviews and investigations into criminal activity including check and credit card fraud, skimming, money laundering, drug activity and other violations.
David holds a Bachelor’s Degree in Business Administration from Vanguard University in Costa Mesa and a Master’s Degree in Finance from California State University San Bernardino. He is a member of the Association of Certified Fraud Examiners.
Michelle Shaw; Compliance Inspector
Michelle conducts onsite inspections, examinations and other actions to monitor compliance with established standards for local licensed cannabis businesses. Prior to joining HdL, she was a Compliance Specialist Officer at a large, multinational bank where she managed, validated and oversaw the effectiveness and accuracy of numerous compliance issues within the consumer retail space. Throughout her eight years of experience at the bank, she performed assessments of affiliate businesses to determine compliance/non-compliance of their processes and procedures pursuant to bank standards and state regulations.
A graduate of Cypress College, Michelle holds a Foundations of Banking Risk certificate from the Global Association of Risk Professionals and a paralegal certificate from the Southern California College of Business and Law.
Jeff Burris; Background Investigator / Compliance Inspector Jeff Burris has over 28 years’ experience as a Law Enforcement Professional. Jeff began his career with the Orange County Sheriff’s Office before moving to the Ontario Police Department, where he advanced to Corporal, Police Detective and Sergeant before retiring as a Lieutenant. Jeff worked various investigative assignments during his law enforcement career, including both criminal and non-criminal investigations. 11 Proposal for Cannabis Management Services
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While working as a Police Detective Jeff conducted personnel background investigations for sworn, non-sworn, administrative, and confidential employees. These investigations included criminal checks, credit checks, prior employment verification, personal reference verification, driving records, pre-polygraph questioning, neighborhood canvassing, and oral interviews.
His assignments also included annual State audits for regulatory compliance.
Jeff received his Bachelor of Science degree in Occupational Management from the California State University in Long Beach. Jeff has completed numerous specialized training courses in investigative techniques, including a course in background investigations by the California Commission on Peace Officer Standards and Training (CA POST), and is a former member of the California Background Investigators Association (CBIA).
Teresa Schneider; Compliance Inspector
Teresa Schneider served for 28 years with the Montclair Police Department, including 12 years in the Background Investigations Unit. In this capacity, Teresa was responsible for conducting background investigations of all City business license applicants, as well as all sworn and non-sworn positions within the police and fire departments and of civilians requesting access to police department records.
Theresa previously served 4 years in the U.S. Army’s nursing program at Fort Campbell, Kentucky. During this time she attended college at the University of Kentucky and Austin Peay State University. After receiving an Honorable Discharge in 1990, Teresa was hired by the Montclair Police Department. During her 28-year career, she worked numerous assignments, including patrol, K9, detective bureau, court liaison, volunteer coordinator, and red-light automated enforcement. Teresa received many awards throughout her career, including Officer of the Year.
Elizabeth Eumurian; Audit Manager
Elizabeth Eumurian is the Audit Supervisor for HdL. Her primary role is to oversee and review the audits conducted by team members to assure accuracy and consistency. She also conducts financial audits, evaluates cannabis applications and conducts background checks.
As part of the audit program, she will be conducting and preparing analytical information through the CATS™ program to prepare Tax Analytical Remittance Reports (TARR) summaries to evaluate under reporting or anomalies in the remittance of tax payments to local jurisdictions.
Elizabeth previously worked as a senior auditor in the entertainment industry. In this role, she executed testing procedures for targeted audit programs, analyzed findings and prepared audit and compliance reports. She also has experience working for a large financial institution analyzing data for reporting anomalies and performing internal audits. Elizabeth has recently done work for Blythe, California City, Coachella, Cotati, Desert Hot Springs, Long Beach, Mammoth Lakes, Moreno Valley, Perris, San Bernardino, and Vallejo.
Elizabeth earned her Bachelor of Arts degree in History from California State University and holds a certificate in CannaBusiness from Oaksterdam University. 12 Proposal for Cannabis Management Services
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Pam Davis; Auditor
Pam Davis conducts revenue audits of licensed cannabis businesses as a member of HdL’s Cannabis Management Team. Prior to joining HdL, Pam served as the Director for the Richland County (South Carolina) Business Service Center for over 15 years, where she was responsible for auditing businesses to ensure accurate reporting and remittance of a variety of local taxes. Pam also conducted research and rate impact analyses and developed policies, procedures and user manuals to ensure business and governmental compliance.
Pam received a Master’s of Public Administration degree from the University of Georgia and a Bachelor’s Degree in Political Science from Clemson University. She also holds a certificate in CannaBusiness from Oaksterdam University as well as numerous other certifications, Odette Mikhail; Auditor
Odette Mikhail conducts cannabis revenue audits at HdL. Odette previously worked as a senior auditor at public accounting firms. In this role, she executed testing procedures for audit and review engagements, identified accounting issues, reviewed internal controls, and prepared financial reports and statements. Odette earned her Bachelor of Science degree in Accounting and Business Administration from Ain Shams University in Cairo, Egypt.
Tao Lu; Auditor
Tao Lu works as an Auditor for HdL’s Cannabis Management Team. Tao has two and a half years’ experience as an accountant with an emphasis in information technology and food manufacturing industries. He also has public audit work experience at RSM China. Tao was born and raised in China. He earned a Bachelor’s Degree in Accounting and Finance from Syracuse University in New York before relocating to Southern California with his family.
Valerie Carter; Auditor
Valerie Carter works as an Auditor for HdL’s Cannabis Management Team. Valerie has over 5 years of public sector work experience focusing on public policy, auditing and revenue tax implementation. She was a Tax Auditor II for the City of Oakland’s Revenue Management Bureau and an Assistant Management Analyst for the City of Berkeley’s Transportation division. Valerie earned a Bachelor’s Degree in Business Administration from Cal Poly Pomona, with an emphasis on Finance, Real Estate, and Law.
Eric Magana; Auditor
Eric Magana works as an Auditor for HdL’s Cannabis Management Team, conducting revenue audits of licensed cannabis businesses to ensure they are accurately reporting their revenues and remitting the proper amount of fees or taxes. Prior to joining HdL, Eric worked as a Loan Specialist for the U.S. Small Business Administration, where he processed over 5,000 business loans and grant applications. Eric holds a Bachelor’s Degree in Economics and Administrative Studies from University of California at Riverside. 13 Proposal for Cannabis Management Services
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Jennifer Erwin; Audit Analyst
Jennifer Erwin is an Audit Analyst for HdL’s Cannabis Management Team. Jennifer conducts revenue audits of licensed cannabis businesses to ensure they are reporting and remitting the proper amount of cannabis tax revenue to their host jurisdiction. Jennifer previously served as Finance Director for the City of Perris, California and as Controller for the Morongo Band of Mission Indians. Jennifer brings experience with complex financial analyses, fee studies, cost accounting procedures and collections.
Jennifer is a Certified Public Accountant (CPA #108992) and received her Bachelor of Science degree in Business Administration from the University of Phoenix.
Tonson Chieng; Audit Analyst
Tonson Chieng is an Auditor for HdL’s Cannabis Management Team, conducting revenue audits of licensed cannabis businesses to ensure they are accurately reporting their revenues and remitting the proper amount of fees or taxes. Tonson previously worked as an accountant for Release Point, a business services company in Claremont, California, where he was responsible for generating and reviewing financial reports for in depth analysis along with other accounting and bookkeeping functions. Tonson also brings experience as a staff accountant for the CPA firm of MMB & Co.
Tonson received a Bachelor of Science degree in Accounting from California Polytechnic State University at Pomona in 2020.
Dante Chegini; Audit Analyst
Dante Chegini conducts revenue audits as a member of HdL’s Cannabis Management Team to ensure that licensed cannabis businesses are reporting and remitting the proper amount of cannabis taxes to their host jurisdiction. Dante previously worked as a financial analyst at a public finance investment banking firm in Los Angeles, where he was lead analyst on over 30 deals with a total value exceeding $1 billion. Dante brings experience with organizing and analyzing large volumes of financial data to determine accurate revenues and debts.
Dante received a Bachelor of Science degree in Business Administration from the University of Southern California, Marshall School of Business in May of 2022 with a focus on financial and managerial accounting and business finance.
Kristi Lervold; Administrative Assistant
Kristi is the Administrative Assistant for HdL’s cannabis team. In this role she supports individual team members, coordinates internal processes, and assists with client requests, contracts, billing reconciliation and invoicing. Kristi’s 18-year career includes ten years as the administrative assistant to HdL’s CFO, handling various operational responsibilities and supporting financial functions, as well as experience in the occupational health industry, facilitating services for federal, state, and local government clients. Kristi holds a Bachelor’s of Science degree in Business Management with a minor in Business Administration. 14 Proposal for Cannabis Management Services
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VI. REFERENCES
City of Modesto
Steve Mitchell
Acting Planning Manager
Phone: 209.577.5287
Email: [email protected]
County of Sonoma
Brooke Koop
Assistant Auditor-Controller Treasurer-Tax Collector
Phone: 707.565.1294
E-Mail : [email protected]
City of Atwater
Delilah Youmara
Finance Director
Phone: 209.357.6347
Email: [email protected]
City of Claremeont
Alex Cousins
Management Analyst, Community Development
Phone: 909.399.5323
Email: [email protected]
City of Needles
Patrick J. Martinez
Assistant City Manager/Development Services
Phone: 951.809.6448
Email: [email protected]
Item No. 11 (B)
REPORT TO THE CITY COUNCIL
DATE: MARCH 28, 2023
TO: CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER
RE: CONSIDERATION OF SELECTION OF BROADWAY STREET
WIND SCULPTURES
RECOMMENDATION:
It is recommended the City Council 1) approve selection of sculptures for the Downtown Streetscape Plan Median Improvements, Downtown Plaza, and the Step Up Permanent Supportive Housing Project; 2) award a contract to Saori Ide and Jonathan Russell for the sculptures for the Broadway Street medians and Downtown Plaza; and 3) authorize the City Manager to make minor nonsubstantive changes to the agreements as necessary in a form approved by the City Attorney.
BACKGROUND:
In 2017, the City Council approved the City’s Wind Sculptures in Public Places Plan. The concept was first proposed in the City’s Downtown Streetscape Plan.
The purpose was to create a theme for the City’s public art program to increase interest in art features and attract visitors. It was believed the concept of wind sculptures (kinetic art) could be effective because this style of sculpture adds movement to the art. As a result, the plan proposed encouraging, facilitating and funding art pieces on private and public property featuring wind sculptures at strategic locations throughout the City over time.
Since that time, wind sculptures have been included in the design for the Downtown Streetscape Project medians, the Downtown Plaza, and the Step Up homekey permanent supportive housing project at the former Days Inn site.
Grant funding has been secured for each of the projects. Staff solicited proposals for consultants to provide technical assistance with the selection process. At the September 27, 2022 meeting, the City Council approved a contract with the recommended consultant and the selection process.
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The process involved issuing a Request for Qualifications (RFQ) to qualified artists. Two finalists for each project were then asked to respond to a Request for Proposals (RFP). The selection of finalists and recommendations for the final award of contracts were developed by an Art Selection Committee. The Committee included representatives from the following:
• Monterey County Arts Council
• Sol Treasures
• King City in Bloom
• City Manager
• Recreation Coordinator
Final interviews were conducted virtually on Monday, February 27th where each artist presented their proposals. Those not selected received a $750 stipend for the work involved in preparing the proposal.
DISCUSSION:
A template agreement has been prepared in coordination with the art consultant and City Attorney. The City will not enter into a formal agreement for the Step Up permanent supportive housing project sculpture because the agreement will be with the developer, Shangri-La. However, Shangri-La agreed to have the sculpture selected by the City’s process, and they have approved the recommended artist and sculpture. Below are the three projects recommended.
Step Up Permanent Supportive Housing Project
Artist: Eric Peltzer
Title: Pacific Flyway
Materials: Stainless Steel
Height: 19 feet
Theme: The piece portrays birds in flight. It serves symbolically to turn the viewers gaze upwards, as in human aspirations, imagining and reaching for higher things, both in water and in flight.
Features: The top portion of the piece will spin, creating a vision of spiraling toward the sky. The artist added the bronze feature at the request of the Art Selection Committee.
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Downtown Plaza
Artist: Saori Ide and Jonathan Russell
Title: Nurture
Materials: Powder Coated Stainless Steel
Height: 17 feet
Theme: The piece is intended to capture a welcoming and vibrant feel that reflects the diverse community of King City. The organic plant like form signifies the growth of the city and the idea of planting seeds and cultivating for the next generations. It embodies the idea of being alive and active. Just as the weather is unique and unpredictable, so too are the movements of the sculpture as it responds to the environment around it.
Features: The leaves will spin in a circular motion. The sculpture casts shadows through cutout designs on each of the large leaves. As these leaves turn with the wind, they will create a dance of shimmering “jewels” on the ground, enhancing the dynamic movement of this sculpture. The piece will both include an uplight, as well as colored lighting integrated by the artists into the piece to create a beautiful image during evening hours.
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Broadway Street Medians
Artist: Saori Ide and Jonathan Russell
Title: Harvest
Materials: Powder Coated Stainless Steel
Height: 12 feet
Theme: The colorful wind sculptures along the street capture the vibrant and lively lifestyle of King City. They are intended to honor the importance of agriculture to the community, including both the farm businesses and farm workers.
Features: As the wind blows, the internal element rotates on its vertical axis, providing a fun and uplifting feeling along the street. These will activate the visual canvas of the street that is normally quiet otherwise. The artists have agreed to work with staff to replace some of the produce items portrayed in the pieces to better reflect the primary crops grown adjacent to King City. Staff has contacted the major farm operations to determine their predominant crops.
As a result, the recommended items will be lettuce, spinach, grapes, onions, broccoli, and cauliflower.
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COST ANALYSIS:
The following are costs and revenue sources:
Sculpture Cost Funding Source
Pacific Flyway $115,000 Homekey Funding
Nurture $100,000 Proposition 168
Harvest $120,000 ARPA Funds
ENVIRONMENTAL REVIEW:
The sculptures have all been incorporated into the design of each improvement project. Therefore, the environmental review has already been completed through the approval process for each project.
ALTERNATIVES:
The following alternatives are presented for Council consideration:
1. Approve staff’s recommendations;
2. Direct staff to request the Art Selection Committee to consider alternative pieces or to solicit additional proposals;
01222.0001/360025.1 1
CITY OF KING
CONTRACT SERVICES AGREEMENT FOR
________________
THIS PROFESSIONAL SERVICES AGREEMENT (herein “Agreement”) is made and entered into this 28th day of March, 2023, by and between the CITY OF KING, a California municipal corporation (“City”) and Ride Art Studio (herein “Artist”).
NOW, THEREFORE, the parties hereto agree as follows:
1. SERVICES OF ARTIST
1.1 Scope of Services. In compliance with all of the terms and conditions of this Agreement, the Artist shall perform the work or services set forth in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by reference. Artist warrants that it has the experience and ability to perform all work and services required hereunder and that it shall diligently perform such work and services in a professional and satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Artist shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by the Agreement.
1.4 Installation.
(a) Upon the City’s final approval of the fabricated Artwork as being in conformity with the Design, the Artist shall deliver [and install] the completed Artwork to the Site in accordance with the schedule provided for in Exhibit D. (b) The Artist will coordinate closely with the City to ascertain that the Site is prepared to receive the Artwork. Artist must notify City of any adverse conditions at the Site that would affect or impede the installation of the Artwork. (c) The Artist is responsible for timely installation of the Artwork. Artist may not install the Artwork until authorized to do so by the City. (d) The Artist shall be present to supervise the installation of the Artwork. (e) Upon installation, the Artwork shall be deemed to be in the custody of the City for purposes of Article 4 and Article 6 of this Agreement; the City assumes liability for any damage to the Artwork or injury to persons or property caused by the Artwork or any activity related to the Artwork.
Exhibit 1
2 01222.0001/360025.1
(f) Upon completion of the installation of the Artwork, the Artist shall provide the City with written instructions for the future maintenance and preservation of the Artwork. The City is responsible for the proper care and maintenance of the Artwork. (g) The City may enter into a separate contract with artist to assist with ongoing maintenance.
1.5 Approval and Acceptance.
(a) The Artist shall notify the City in writing when all services as required of both Parties by this Agreement prior to this paragraph have been completed in substantial conformity with the Design and contract documents.
(b) The City shall promptly notify the Artist in writing of its final acceptance of the Artwork within 45 days after the Artist submitted written notice pursuant to paragraph (a) above. The effective date of final acceptance shall be the date the City submits written notice to the Artist of its final acceptance of the Artwork. The final acceptance shall be understood to mean that the City acknowledges completion of the Artwork in substantial conformity with the Design, and that the City confirms that all services as required of both Parties by this Agreement prior to paragraph (c) of this section have been completed. Title to the Artwork to the City passes upon final acceptance of the Artwork and final payment by City to Artist. If a regulatory agency must approve the completed artwork, the City should move promptly to gain such approval as it will be a precondition to the City’s ability to accept and approve the finished artwork from the Artist.
(c) If the City disputes that all the services have been performed, the City shall notify the Artist in writing of those services the Artist has failed to perform within 45 days after the Artist submitted written notice pursuant to paragraph (a) above. The Artist shall promptly perform those services indicated by the City.
(d) If the Artist disputes the City’s determination that not all services have been performed, the Artist shall submit reasons in writing to the City within 30 days of the City’s prior notification to the contrary. The City shall make reasonable efforts to resolve the dispute with the Artist in good faith. However, final determination as to whether all services have been performed shall remain with the City.
(e) Upon the resolution of any disputes that arise under paragraphs (c) and (d) of this Section, the City shall notify the Artist of its final acceptance of the Artwork pursuant to paragraph (b).
1.6 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
3 01222.0001/360025.1
2. COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Artist shall be compensated in accordance with the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference, but not exceeding the maximum contract amount of One Hundred Thousand Dollars ($100,000.00) (“Contract Sum”).
2.2 Invoices. Artist shall furnish to City an original invoice for 50% of the contract cost at the commencement of the contract and 50% after installation in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Artist is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by subcategory), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Artist shall not invoice City for any duplicate services performed by more than one person.
City shall independently review each invoice submitted by the Artist to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Artist which are disputed by City, City will use its best efforts to cause Artist to be paid within forty five (45) days of receipt of Artist’s correct and undisputed invoice; however, Artist acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Artist for correction and resubmission. Review and payment by the City of any invoice provided by the Artist shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.3 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Artist, incorporating therein any adjustment in (i) the Contract Sum for the actual cost of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Artist. Any increase in compensation of up to five percent (5%) of the Contract Sum but not exceeding a total contract amount of Five Thousand Dollars ($5,000) or in the time to perform of up to ninety (90) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. No claim for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. Artist shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this reference. When requested by the Artist, extensions to the 4 01222.0001/360025.1
time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding thirty (30) days cumulatively.
3.3 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Artist, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Artist shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the parties to this Agreement. In no event shall Artist be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Artist’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term. Unless earlier terminated in accordance with Article 10 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit “D”).
4. ARTIST’S REPRESENTATIONS AND WARRANTIES
4.1 Warranties of Title. The Artist represents and warrants that:
(a) the Artwork is solely the result of the artistic effort of the Artist; (b) except as otherwise disclosed in writing to the City, the Artwork is unique and original and does not infringe upon any copyright or the rights of any person; (c) the Artwork (or duplicate thereof) has not been accepted for sale elsewhere;
(d) the Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; (e) the Artwork is free and clear of any liens from any source whatsoever; (f) all Artwork created by the Artist under this Agreement, whether created by the Artist alone or in collaboration with others shall be wholly original with the Artist and shall not infringe upon or violate the rights of any third party; (g) the Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; 5 01222.0001/360025.1
(h) all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and diligence; (i) these representations and warranties shall survive the termination or other extinction of this Agreement.
4.2 Warranties of Quality and Condition
(a) The Artist represents and warrants that all work will be performed in accordance with professional “workmanlike” standards and free from defective or inferior materials and workmanship (including any defects consisting of “inherent vice,” or qualities that cause or accelerate deterioration of the Artwork) for one year after the date of final acceptance by the City under Section 1.5(b).
(b) The Artist represents and warrants that the Artwork and the materials used are not currently known to be harmful to public health and safety. (c) The Artist represents and warrants that reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance and preservation recommendations submitted by the Artist pursuant to Section 1.4(f). (d) If within one year the City observes any breach of warranty described in this Section 4.2, the Artist shall cure the breach promptly, satisfactorily and consistent with professional conservation standards, at no expense to the City. The City shall give notice to the Artist of such breach with reasonable promptness. However, if Artist did not disclose this risk of breach in the Proposal and Maintenance and Conservation manual, and if breach is not curable by Artist, the Artist is responsible for reimbursing the City for damages, expense and loss incurred by the City as a result of the breach of warranty. However, if the Artist disclosed the risk of this breach in the Proposal and maintenance and conservation manual and the City accepted that it may occur, as indicated by the written final acceptance of the artwork, it shall not be deemed a breach for purposes of this Section 4.2 of this Agreement. (e) If after one year the City observes any breach of warranty described in this Section 4.2 that is curable by the Artist, the City shall contact the Artist to make or supervise repairs or restorations at a reasonable fee during the Artist’s lifetime. The Artist shall have the right of first refusal to make or supervise repairs or restorations. Should the Artist be unavailable or unwilling to accept reasonable compensation under the industry standard, the City may seek the services of a qualified restorative conservator and maintenance expert.
The foregoing warranties are conditional, and shall be voided by the failure of the City to maintain the Artwork in accordance with the Artist’s specifications and the applicable conservation standards. If the City fails to maintain the Artwork in good condition, the Artist, in addition to other rights or remedies the Artist may have in equity or at law, shall have the right to disown the Artwork as the Artist’s creation and request that all credits be removed from the Artwork and reproductions thereof until the Artwork’s condition is satisfactorily repaired. 6 01222.0001/360025.1
5. COORDINATION OF WORK
5.1 Representative of Artist. Saori Ide and Jonathan Russell is hereby designated as being the representative of Artist authorized to act on its behalf with respect to the work and services specified herein and make all decisions in connection therewith. All personnel of Artist and any authorized agents shall be under the exclusive direction of the representative of Artist. Artist shall utilize only competent personnel to perform services pursuant to this Agreement. Artist shall make every reasonable effort to maintain the stability and continuity of Artist’s staff and subcontractors, and shall keep City informed of any changes.
5.2 Contract Officer. Steven Adams [or such person as may be designated by the City Manager] is hereby designated as being the representative the City authorized to act in its behalf with respect to the work and services specified herein and to make all decisions in connection therewith (“Contract Officer”).
5.3 Prohibition Against Subcontracting or Assignment. Artist shall not contract with any entity to perform in whole or in part the work or services required hereunder without the express written approval of the City. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Any such prohibited assignment or transfer shall be void.
5.4 Independent Artist. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Artist, its agents or employees, perform the services required herein, except as otherwise set forth. Artist shall perform all services required herein as an independent contractor of City with only such obligations as are consistent with that role. Artist shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City, or that it is a member of a joint enterprise with City.
6. INSURANCE AND INDEMNIFICATION
6.1 Insurance Coverages. The Artist shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City:
(a) Commercial General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, either the general aggregate limit shall apply separately to this contract/location, or the general aggregate limit shall be twice the occurrence limit.
(b) Worker’s Compensation Insurance. If the Artist has any employees, a policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Artist against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Artist in the course of carrying out the work or services contemplated in this Agreement.
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(c) Automotive Insurance (Form CA 0001 (Ed 1/87) including “any auto” and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than either (i) bodily injury liability limits of $250,000.00 per person and $500,000.00 per occurrence and property damage liability limits of $500,000.00 per occurrence or (ii) combined single limit liability of $1,000,000.00. Said policy shall include coverage for owned, non-owned, leased, hired cars, and any other automobile.
(d) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.
(e) Subcontractors. Artist shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
6.2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Artist’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. The insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Artist shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Artist has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of and endorsement to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
The insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the City’s Risk Manager or other designee of the City due to unique circumstances.
5.3 Indemnification. To the full extent permitted by law, Artist agrees to indemnify, defend and hold harmless the City, its officers, employees and agents (“Indemnified Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or 8 01222.0001/360025.1
threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Artist, its officers, employees, agents, subcontractors, invitees, or any individual or entity for which Artist is legally liable (“indemnitors”), or arising from Artist’s or indemnitors’ reckless or willful misconduct, or arising from Artist’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, except claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions. The indemnity obligation shall be binding on successors and assigns of Artist and shall survive termination of this Agreement.
7. RECORDS, REPORTS, AND RELEASE OF INFORMATION
7.1 Records. Artist shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services and shall keep such records for a period of three years following completion of the services hereunder. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records.
7.2 Reports. Artist shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement or as the Contract Officer shall require.
7.3 Confidentiality and Release of Information.
(a) All information gained or work product produced by Artist in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Artist. Artist shall not release or disclose any such information or work product to persons or entities other than the City without prior written authorization from the Contract Officer.
(b) Artist shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Artist gives the City notice of such court order or subpoena.
(c) If Artist provides any information or work product in violation of this Agreement, then the City shall have the right to reimbursement and indemnity from Artist for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Artist’s conduct.
(d) Artist shall promptly notify the City should Artist be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party 9 01222.0001/360025.1
regarding this Agreement and the work performed thereunder. The City retains the right, but has no obligation, to represent Artist or be present at any deposition, hearing or similar proceeding.
Artist agrees to cooperate fully with the City and to provide the City with the opportunity to review any response to discovery requests provided by Artist.
7.4 Ownership of Documents. All studies, surveys, data, notes, computer files, reports, records, drawings, specifications, maps, designs, photographs, documents and other materials (the “documents and materials”) prepared by Artist in the performance of this Agreement shall be the property of the City and shall be delivered to the City upon request of the Contract Officer or upon the termination of this Agreement, and Artist shall have no claim for further employment or additional compensation as a result of the exercise by the City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder.
Moreover, Artist with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
8. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
8.1 Title. Title to the Artwork shall pass to the City upon the City’s written final acceptance and payment for the Artwork pursuant to Section 1.5(b) and Exhibit B.
8.2 Ownership of Documents. One set of presentation materials prepared by Artist and submitted to City under this Agreement shall be retained by City.
8.3 Copyright Ownership. The Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. §101 et seq., as the sole author of the Artwork for the duration of the copyright.
8.4 Reproduction Rights.
(a) In view of the intention that the final Artwork shall be unique, the Artist shall not make any additional exact duplicate [three]-dimensional reproductions of the final Artwork, nor shall the Artist grant permission to others to do so except with the written permission of the City. However, nothing shall prevent the Artist from creating works in the Artist’s manner and style of artistic expression.
(b) The Artist grants to the City and its assignees an irrevocable license to make two-dimensional reproduction of the Artwork for non-commercial purposes, including, but not limited to, reproductions used in brochures, media publicity, and exhibition catalogues or other similar publication provided that these rights are exercised in a tasteful and professional manner.
(c) All reproductions by the City shall contain a credit to the Artist and a copyright notice in substantially the following form: © [Artist’s name, date of publication]. (d) The Artist shall use his best efforts in any public showing or resume use of reproductions to give acknowledgment to the City in substantially the following form: “An original artwork owned and commissioned by the City.”
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(e) The Artist shall, at the Artist’s expense, cause to be registered with the United States Register of Copyrights, a copyright in the Artwork in the Artist’s name. (f) If the City wished to make reproductions of the Artwork for commercial purposes including, but not limited to, tee shirts, post cards and posters, the Parties shall execute a separate agreement to address the terms of the license granted by the Artist and the royalty the Artist shall receive.
9. ARTIST’S RIGHTS
9.1 General.
(a) The Artist retains all rights under state and federal laws including §106A of the Copyright Act of 1976.
(b) The City agrees that it will not intentionally alter, modify, change, destroy or damage the Artwork without first obtaining permission from the Artist. The City further agrees to take reasonable measures to avoid these from occurring from the gross negligence of the City, its representatives, or employees pursuant to the federal Visual Artists’ Rights Act.
(c) If any alteration or damage to the Artwork occurs, the Artist shall have the right to disclaim authorship of the Artwork in addition to any remedies he/she may have in law or equity under this contract. Upon written request, the City shall remove the identification plaque and all attributive references to the Artist at its own expense within 45 days of receipt of the notice. No provision of this Agreement shall obligate the City to alter or remove any such attributive reference printed or published prior to the City’s receipt of such notice. The Artist may take such other action as the Artist may choose in order to disavow the Artwork.
9.2 Alteration of Site or Removal of Artwork.
(a) The City shall notify the Artist in writing upon [adoption of a plan of construction or alteration of the Site] which would entail removal or relocation of the Artwork which might result in the Artwork being destroyed, distorted or modified. The Artist shall be granted the right of consultation regarding the removal or relocation of the Artwork. If the Artwork cannot be successfully removed or relocated as determined by the City, the Artist may disavow the Artwork or have the Artwork returned to him/her at his/her expense. (b) The Artwork may be removed or relocated or destroyed by the City should the Artist and the City not reach mutual agreement on the removal or relocation of the Artwork after a period not to exceed [90] days after written notice to the Artist. During the [90] day period, the parties shall engage in good faith negotiations concerning the Artwork’s removal or relocation.
(c) In the event of changes in building codes or zoning laws or regulations that cause the Artwork to be in conflict with such codes, laws or regulations, the City may authorize the removal or relocation of the Artwork without the Artist’s prior permission. In the 11 01222.0001/360025.1
alternative, the City may commission the Artist by a separate agreement to make any necessary changes to the Artwork to render it in conformity with such codes, laws or regulations. (d) If the City reasonably determines that the Artwork presents an imminent hazard to the public, other than as a result of the City’s failure to maintain the Artwork as required under this Agreement, the City may authorize the removal of the Artwork without the prior approval of the Artist.
(e) This clause is intended to replace and substitute for the rights of the Artist under the Visual Artists’ Rights Act to the extent that any portion of this Agreement is in direct conflict with those rights. The Parties acknowledge that this Agreement supersedes that law to the extent that this Agreement is in direct conflict therewith.
10. ENFORCEMENT OF AGREEMENT AND TERMINATION
10.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Monterey, State of California.
10.2 Disputes; Default. In the event that Artist is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Artist for any work performed after the date of default. Instead, the City may give notice to Artist of the default and the reasons for the default. The notice shall include the timeframe in which Artist may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, if circumstances warrant. During the period of time that Artist is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. If Artist does not cure the default, the City may take necessary steps to terminate this Agreement under this Article.
10.3 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Artist shall file a statutory claim pursuant to Government Code Sections 905 et. seq. and 910 et. seq., in order to pursue any legal action under this Agreement.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
10.4 Termination Prior to Expiration of Term. This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or 12 01222.0001/360025.1
without cause, upon thirty (30) days’ written notice to Artist, except that where termination is due to the fault of the Artist, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Artist reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Artist may determine. Upon receipt of any notice of termination, Artist shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer.
Except where the Artist has initiated termination, the Artist shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer. In the event the Artist has initiated termination, the Artist shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder, but not exceeding the compensation provided therefore in the Schedule of Compensation Exhibit “C”. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.
10.5 Termination for Default of Artist. If termination is due to the failure of the Artist to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Artist shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Artist for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
11. MISCELLANEOUS
11.1 Covenant Against Discrimination. Artist covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Artist shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class
11.2 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Artist, or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to the Artist or to its successor, or for breach of any obligation of the terms of this Agreement.
11.3 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of King 212 S. Vanderhurst Avenue, King City, CA 93930 and in the case of the Artist, to the person(s) at the address designated on the execution page of this Agreement. Either 13 01222.0001/360025.1
party may change its address by notifying the other party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
11.4 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing.
11.5 Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
11.6 Waiver. No delay or omission in the exercise of any right or remedy by non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party’s consent to or approval of any act by the other party requiring the party’s consent or approval shall not be deemed to waive or render unnecessary the other party’s consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
11.7 Attorneys’ Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which any be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees, whether or not the matter proceeds to judgment.
11.8 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
11.9 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
11.10 Warranty & Representation of Non-Collusion. No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be 14 01222.0001/360025.1
consistent with State law and shall not include interests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5. Artist warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Artist further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Artist is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
Artist’s Authorized Initials _______
11.11 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties.
[Signatures on the following page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF KING, a municipal corporation
Steven Adams, City Manager
ATTEST:
Erica Sonne, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Roy Santos, City Attorney
ARTIST:
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Artist is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. ARTIST’S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO ARTIST’S BUSINESS ENTITY.
01222.0001/360025.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF MONTEREY
On __________, 2023 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. 01222.0001/360025.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF MONTEREY
On __________, 2023 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. 01222.0001/360025.1 A-1
EXHIBIT “A”
SCOPE OF SERVICES
I. Artist will perform the following services:
A. Fabricate artwork according to the approved proposal for the piece titled Nurture at the King City Downtown Plaza project and as set forth in Exhibit B, working through Art Consultant to verify any engineering and technical issues with appropriate departments in the City.
B. Deliver and install the artwork, ensuring any equipment necessary for installation is organized prior to date of installation.
C. Provide a clear maintenance report to the City.
II. As part of the Services, Artist will prepare and deliver the following tangible work products to the City:
A. Detailed engineering specifications
B. Wind load specifications
C. Installation instructions
III. In addition to the requirements of Section 6.2, during performance of the Services, Artist will keep the City updated of the status of performance by delivering regular status reports. The Art Consultant will be the liaison between the consultant and the City and provide regular updates to the City.
IV. All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City.
V. Art piece shall be created by Saori Ide and Jonathan Russell.
VI. City Responsibilities
A. City shall provide Artist at no expense to Artist, all reasonably necessary information including but not limited to copies of existing designs, site plans, drawings, reports, list of required permits, and other existing relevant data, if any, needed by Artist in order to perform Artist’s obligations within fifteen (15) days of Artist’s written request itemizing the requested information.
B. City shall provide Artist with any other reasonably necessary information concerning all applicable laws and regulations, including zoning or environmental 01222.0001/360025.1
regulations, within fifteen (15) days of Artist’s written request itemizing the requested information. Notwithstanding the foregoing, Artist shall be responsible for complying with all laws, including, without limitation, zoning and environmental laws and regulations.
C. City shall corporate with Artist in preparing the Site for the Artwork including but not limited to clearing the site for Artist to prepare the footing. City shall be responsible for bringing any necessary electricity to the site per Artist’s specification. City shall be responsible for any paving, pedestal or seating (if City has decided to incorporate) and landscaping around the Artwork after completion of installation of the Artwork.
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EXHIBIT “B”
SPECIAL REQUIREMENTS
Graphic Representation of Sculpture:
The sculpture design will be modified to incorporate colored night lighting within the sculpture.
C-1
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EXHIBIT “C”
SCHEDULE OF COMPENSATION
1. Compensation will be provided at 50% upon contract approval and 50% upon installation.
2. The total compensation for the Services shall not exceed $100,000, as provided in Section 2.1 of this Agreement.
D-1
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EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Artist shall perform all services timely in accordance with the following schedule:
Fabrication commences (April 2023)
Progress Report (June/July 2023)
Fabrication (September 2023)
Site Preparation (October 2023)
Installation on-site (November 2023)
The installation timeline shall be dependent upon construction of the Downtown Plaza project and may be adjusted.
01222.0001/360025.1 1
CITY OF KING
CONTRACT SERVICES AGREEMENT FOR
________________
THIS PROFESSIONAL SERVICES AGREEMENT (herein “Agreement”) is made and entered into this 28
th day of March, 2023, by and between the CITY OF KING, a California municipal corporation (“City”) and Ride Art Studio (herein “Artist”).
NOW, THEREFORE, the parties hereto agree as follows:
1. SERVICES OF ARTIST
1.1 Scope of Services. In compliance with all of the terms and conditions of this Agreement, the Artist shall perform the work or services set forth in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by reference. Artist warrants that it has the experience and ability to perform all work and services required hereunder and that it shall diligently perform such work and services in a professional and satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Artist shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by the Agreement.
1.4 Installation.
(a) Upon the City’s final approval of the fabricated Artwork as being in conformity with the Design, the Artist shall deliver [and install] the completed Artwork to the Site in accordance with the schedule provided for in Exhibit D. (b) The Artist will coordinate closely with the City to ascertain that the Site is prepared to receive the Artwork. Artist must notify City of any adverse conditions at the Site that would affect or impede the installation of the Artwork. (c) The Artist is responsible for timely installation of the Artwork. Artist may not install the Artwork until authorized to do so by the City. (d) The Artist shall be present to supervise the installation of the Artwork. (e) Upon installation, the Artwork shall be deemed to be in the custody of the City for purposes of Article 4 and Article 6 of this Agreement; the City assumes liability for any damage to the Artwork or injury to persons or property caused by the Artwork or any activity related to the Artwork.
Exhibit 2
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(f) Upon completion of the installation of the Artwork, the Artist shall provide the City with written instructions for the future maintenance and preservation of the Artwork. The City is responsible for the proper care and maintenance of the Artwork. (g) The City may enter into a separate contract with artist to assist with ongoing maintenance.
1.5 Approval and Acceptance.
(a) The Artist shall notify the City in writing when all services as required of both Parties by this Agreement prior to this paragraph have been completed in substantial conformity with the Design and contract documents.
(b) The City shall promptly notify the Artist in writing of its final acceptance of the Artwork within 45 days after the Artist submitted written notice pursuant to paragraph (a) above. The effective date of final acceptance shall be the date the City submits written notice to the Artist of its final acceptance of the Artwork. The final acceptance shall be understood to mean that the City acknowledges completion of the Artwork in substantial conformity with the Design, and that the City confirms that all services as required of both Parties by this Agreement prior to paragraph (c) of this section have been completed. Title to the Artwork to the City passes upon final acceptance of the Artwork and final payment by City to Artist. If a regulatory agency must approve the completed artwork, the City should move promptly to gain such approval as it will be a precondition to the City’s ability to accept and approve the finished artwork from the Artist.
(c) If the City disputes that all the services have been performed, the City shall notify the Artist in writing of those services the Artist has failed to perform within 45 days after the Artist submitted written notice pursuant to paragraph (a) above. The Artist shall promptly perform those services indicated by the City.
(d) If the Artist disputes the City’s determination that not all services have been performed, the Artist shall submit reasons in writing to the City within 30 days of the City’s prior notification to the contrary. The City shall make reasonable efforts to resolve the dispute with the Artist in good faith. However, final determination as to whether all services have been performed shall remain with the City.
(e) Upon the resolution of any disputes that arise under paragraphs (c) and (d) of this Section, the City shall notify the Artist of its final acceptance of the Artwork pursuant to paragraph (b).
1.6 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
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2. COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Artist shall be compensated in accordance with the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference, but not exceeding the maximum contract amount of One Hundred and Twenty Thousand Dollars ($120,000.00) (“Contract Sum”).
2.2 Invoices. Artist shall furnish to City an original invoice for 50% of the contract cost at the commencement of the contract and 50% after installation in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Artist is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by subcategory), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Artist shall not invoice City for any duplicate services performed by more than one person.
City shall independently review each invoice submitted by the Artist to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Artist which are disputed by City, City will use its best efforts to cause Artist to be paid within forty five (45) days of receipt of Artist’s correct and undisputed invoice; however, Artist acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Artist for correction and resubmission. Review and payment by the City of any invoice provided by the Artist shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.3 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Artist, incorporating therein any adjustment in (i) the Contract Sum for the actual cost of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Artist. Any increase in compensation of up to five percent (5%) of the Contract Sum but not exceeding a total contract amount of Five Thousand Dollars ($5,000) or in the time to perform of up to ninety (90) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. No claim for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. Artist shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit 4 01222.0001/360025.1
“D” and incorporated herein by this reference. When requested by the Artist, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding thirty (30) days cumulatively.
3.3 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Artist, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Artist shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the parties to this Agreement. In no event shall Artist be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Artist’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term. Unless earlier terminated in accordance with Article 10 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit “D”).
4. ARTIST’S REPRESENTATIONS AND WARRANTIES
4.1 Warranties of Title. The Artist represents and warrants that:
(a) the Artwork is solely the result of the artistic effort of the Artist; (b) except as otherwise disclosed in writing to the City, the Artwork is unique and original and does not infringe upon any copyright or the rights of any person; (c) the Artwork (or duplicate thereof) has not been accepted for sale elsewhere;
(d) the Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; (e) the Artwork is free and clear of any liens from any source whatsoever; (f) all Artwork created by the Artist under this Agreement, whether created by the Artist alone or in collaboration with others shall be wholly original with the Artist and shall not infringe upon or violate the rights of any third party; (g) the Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; 5 01222.0001/360025.1
(h) all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and diligence; (i) these representations and warranties shall survive the termination or other extinction of this Agreement.
4.2 Warranties of Quality and Condition
(a) The Artist represents and warrants that all work will be performed in accordance with professional “workmanlike” standards and free from defective or inferior materials and workmanship (including any defects consisting of “inherent vice,” or qualities that cause or accelerate deterioration of the Artwork) for one year after the date of final acceptance by the City under Section 1.5(b).
(b) The Artist represents and warrants that the Artwork and the materials used are not currently known to be harmful to public health and safety. (c) The Artist represents and warrants that reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance and preservation recommendations submitted by the Artist pursuant to Section 1.4(f). (d) If within one year the City observes any breach of warranty described in this Section 4.2, the Artist shall cure the breach promptly, satisfactorily and consistent with professional conservation standards, at no expense to the City. The City shall give notice to the Artist of such breach with reasonable promptness. However, if Artist did not disclose this risk of breach in the Proposal and Maintenance and Conservation manual, and if breach is not curable by Artist, the Artist is responsible for reimbursing the City for damages, expense and loss incurred by the City as a result of the breach of warranty. However, if the Artist disclosed the risk of this breach in the Proposal and maintenance and conservation manual and the City accepted that it may occur, as indicated by the written final acceptance of the artwork, it shall not be deemed a breach for purposes of this Section 4.2 of this Agreement. (e) If after one year the City observes any breach of warranty described in this Section 4.2 that is curable by the Artist, the City shall contact the Artist to make or supervise repairs or restorations at a reasonable fee during the Artist’s lifetime. The Artist shall have the right of first refusal to make or supervise repairs or restorations. Should the Artist be unavailable or unwilling to accept reasonable compensation under the industry standard, the City may seek the services of a qualified restorative conservator and maintenance expert.
The foregoing warranties are conditional, and shall be voided by the failure of the City to maintain the Artwork in accordance with the Artist’s specifications and the applicable conservation standards. If the City fails to maintain the Artwork in good condition, the Artist, in addition to other rights or remedies the Artist may have in equity or at law, shall have the right to disown the Artwork as the Artist’s creation and request that all credits be removed from the Artwork and reproductions thereof until the Artwork’s condition is satisfactorily repaired. 6 01222.0001/360025.1
5. COORDINATION OF WORK
5.1 Representative of Artist. Saori Ide and Jonathan Russell is hereby designated as being the representative of Artist authorized to act on its behalf with respect to the work and services specified herein and make all decisions in connection therewith. All personnel of Artist and any authorized agents shall be under the exclusive direction of the representative of Artist. Artist shall utilize only competent personnel to perform services pursuant to this Agreement. Artist shall make every reasonable effort to maintain the stability and continuity of Artist’s staff and subcontractors, and shall keep City informed of any changes.
5.2 Contract Officer. Steven Adams [or such person as may be designated by the City Manager] is hereby designated as being the representative the City authorized to act in its behalf with respect to the work and services specified herein and to make all decisions in connection therewith (“Contract Officer”).
5.3 Prohibition Against Subcontracting or Assignment. Artist shall not contract with any entity to perform in whole or in part the work or services required hereunder without the express written approval of the City. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Any such prohibited assignment or transfer shall be void.
5.4 Independent Artist. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Artist, its agents or employees, perform the services required herein, except as otherwise set forth. Artist shall perform all services required herein as an independent contractor of City with only such obligations as are consistent with that role. Artist shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City, or that it is a member of a joint enterprise with City.
6. INSURANCE AND INDEMNIFICATION
6.1 Insurance Coverages. The Artist shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City:
(a) Commercial General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, either the general aggregate limit shall apply separately to this contract/location, or the general aggregate limit shall be twice the occurrence limit.
(b) Worker’s Compensation Insurance. If the Artist has any employees, a policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Artist against any loss, claim or damage arising from any injuries or occupational diseases occurring to 7 01222.0001/360025.1
any worker employed by or any persons retained by the Artist in the course of carrying out the work or services contemplated in this Agreement.
(c) Automotive Insurance (Form CA 0001 (Ed 1/87) including “any auto” and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than either (i) bodily injury liability limits of $250,000.00 per person and $500,000.00 per occurrence and property damage liability limits of $500,000.00 per occurrence or (ii) combined single limit liability of $1,000,000.00. Said policy shall include coverage for owned, non-owned, leased, hired cars, and any other automobile.
(d) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.
(e) Subcontractors. Artist shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
6.2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Artist’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. The insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Artist shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Artist has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of and endorsement to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
The insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the City’s Risk Manager or other designee of the City due to unique circumstances.
5.3 Indemnification. To the full extent permitted by law, Artist agrees to indemnify, defend and hold harmless the City, its officers, employees and agents (“Indemnified 8 01222.0001/360025.1
Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Artist, its officers, employees, agents, subcontractors, invitees, or any individual or entity for which Artist is legally liable (“indemnitors”), or arising from Artist’s or indemnitors’ reckless or willful misconduct, or arising from Artist’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, except claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions. The indemnity obligation shall be binding on successors and assigns of Artist and shall survive termination of this Agreement.
7. RECORDS, REPORTS, AND RELEASE OF INFORMATION
7.1 Records. Artist shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services and shall keep such records for a period of three years following completion of the services hereunder. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records.
7.2 Reports. Artist shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement or as the Contract Officer shall require.
7.3 Confidentiality and Release of Information.
(a) All information gained or work product produced by Artist in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Artist. Artist shall not release or disclose any such information or work product to persons or entities other than the City without prior written authorization from the Contract Officer.
(b) Artist shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Artist gives the City notice of such court order or subpoena.
(c) If Artist provides any information or work product in violation of this Agreement, then the City shall have the right to reimbursement and indemnity from Artist for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Artist’s conduct.
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(d) Artist shall promptly notify the City should Artist be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. The City retains the right, but has no obligation, to represent Artist or be present at any deposition, hearing or similar proceeding.
Artist agrees to cooperate fully with the City and to provide the City with the opportunity to review any response to discovery requests provided by Artist.
7.4 Ownership of Documents. All studies, surveys, data, notes, computer files, reports, records, drawings, specifications, maps, designs, photographs, documents and other materials (the “documents and materials”) prepared by Artist in the performance of this Agreement shall be the property of the City and shall be delivered to the City upon request of the Contract Officer or upon the termination of this Agreement, and Artist shall have no claim for further employment or additional compensation as a result of the exercise by the City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder.
Moreover, Artist with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
8. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
8.1 Title. Title to the Artwork shall pass to the City upon the City’s written final acceptance and payment for the Artwork pursuant to Section 1.5(b) and Exhibit B.
8.2 Ownership of Documents. One set of presentation materials prepared by Artist and submitted to City under this Agreement shall be retained by City.
8.3 Copyright Ownership. The Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. §101 et seq., as the sole author of the Artwork for the duration of the copyright.
8.4 Reproduction Rights.
(a) In view of the intention that the final Artwork shall be unique, the Artist shall not make any additional exact duplicate [three]-dimensional reproductions of the final Artwork, nor shall the Artist grant permission to others to do so except with the written permission of the City. However, nothing shall prevent the Artist from creating works in the Artist’s manner and style of artistic expression.
(b) The Artist grants to the City and its assignees an irrevocable license to make two-dimensional reproduction of the Artwork for non-commercial purposes, including, but not limited to, reproductions used in brochures, media publicity, and exhibition catalogues or other similar publication provided that these rights are exercised in a tasteful and professional manner.
(c) All reproductions by the City shall contain a credit to the Artist and a copyright notice in substantially the following form: © [Artist’s name, date of publication]. 10 01222.0001/360025.1
(d) The Artist shall use his best efforts in any public showing or resume use of reproductions to give acknowledgment to the City in substantially the following form: “An original artwork owned and commissioned by the City.”
(e) The Artist shall, at the Artist’s expense, cause to be registered with the United States Register of Copyrights, a copyright in the Artwork in the Artist’s name. (f) If the City wished to make reproductions of the Artwork for commercial purposes including, but not limited to, tee shirts, post cards and posters, the Parties shall execute a separate agreement to address the terms of the license granted by the Artist and the royalty the Artist shall receive.
9. ARTIST’S RIGHTS
9.1 General.
(a) The Artist retains all rights under state and federal laws including §106A of the Copyright Act of 1976.
(b) The City agrees that it will not intentionally alter, modify, change, destroy or damage the Artwork without first obtaining permission from the Artist. The City further agrees to take reasonable measures to avoid these from occurring from the gross negligence of the City, its representatives, or employees pursuant to the federal Visual Artists’ Rights Act.
(c) If any alteration or damage to the Artwork occurs, the Artist shall have the right to disclaim authorship of the Artwork in addition to any remedies he/she may have in law or equity under this contract. Upon written request, the City shall remove the identification plaque and all attributive references to the Artist at its own expense within 45 days of receipt of the notice. No provision of this Agreement shall obligate the City to alter or remove any such attributive reference printed or published prior to the City’s receipt of such notice. The Artist may take such other action as the Artist may choose in order to disavow the Artwork.
9.2 Alteration of Site or Removal of Artwork.
(a) The City shall notify the Artist in writing upon [adoption of a plan of construction or alteration of the Site] which would entail removal or relocation of the Artwork which might result in the Artwork being destroyed, distorted or modified. The Artist shall be granted the right of consultation regarding the removal or relocation of the Artwork. If the Artwork cannot be successfully removed or relocated as determined by the City, the Artist may disavow the Artwork or have the Artwork returned to him/her at his/her expense. (b) The Artwork may be removed or relocated or destroyed by the City should the Artist and the City not reach mutual agreement on the removal or relocation of the Artwork after a period not to exceed [90] days after written notice to the Artist. During the [90] day period, the parties shall engage in good faith negotiations concerning the Artwork’s removal or relocation.
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(c) In the event of changes in building codes or zoning laws or regulations that cause the Artwork to be in conflict with such codes, laws or regulations, the City may authorize the removal or relocation of the Artwork without the Artist’s prior permission. In the alternative, the City may commission the Artist by a separate agreement to make any necessary changes to the Artwork to render it in conformity with such codes, laws or regulations. (d) If the City reasonably determines that the Artwork presents an imminent hazard to the public, other than as a result of the City’s failure to maintain the Artwork as required under this Agreement, the City may authorize the removal of the Artwork without the prior approval of the Artist.
(e) This clause is intended to replace and substitute for the rights of the Artist under the Visual Artists’ Rights Act to the extent that any portion of this Agreement is in direct conflict with those rights. The Parties acknowledge that this Agreement supersedes that law to the extent that this Agreement is in direct conflict therewith.
10. ENFORCEMENT OF AGREEMENT AND TERMINATION
10.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Monterey, State of California.
10.2 Disputes; Default. In the event that Artist is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Artist for any work performed after the date of default. Instead, the City may give notice to Artist of the default and the reasons for the default. The notice shall include the timeframe in which Artist may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, if circumstances warrant. During the period of time that Artist is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. If Artist does not cure the default, the City may take necessary steps to terminate this Agreement under this Article.
10.3 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Artist shall file a statutory claim pursuant to Government Code Sections 905 et. seq. and 910 et. seq., in order to pursue any legal action under this Agreement.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
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10.4 Termination Prior to Expiration of Term. This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days’ written notice to Artist, except that where termination is due to the fault of the Artist, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Artist reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Artist may determine. Upon receipt of any notice of termination, Artist shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer.
Except where the Artist has initiated termination, the Artist shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer. In the event the Artist has initiated termination, the Artist shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder, but not exceeding the compensation provided therefore in the Schedule of Compensation Exhibit “C”. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.
10.5 Termination for Default of Artist. If termination is due to the failure of the Artist to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Artist shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Artist for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
11. MISCELLANEOUS
11.1 Covenant Against Discrimination. Artist covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Artist shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class
11.2 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Artist, or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to the Artist or to its successor, or for breach of any obligation of the terms of this Agreement.
11.3 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of 13 01222.0001/360025.1
the City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of King 212 S. Vanderhurst Avenue, King City, CA 93930 and in the case of the Artist, to the person(s) at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
11.4 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing.
11.5 Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
11.6 Waiver. No delay or omission in the exercise of any right or remedy by non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party’s consent to or approval of any act by the other party requiring the party’s consent or approval shall not be deemed to waive or render unnecessary the other party’s consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
11.7 Attorneys’ Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which any be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees, whether or not the matter proceeds to judgment.
11.8 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
11.9 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
11.10 Warranty & Representation of Non-Collusion. No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or 14 01222.0001/360025.1
association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include interests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5. Artist warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Artist further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Artist is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
Artist’s Authorized Initials _______
11.11 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties.
[Signatures on the following page.]
15 01222.0001/360025.1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF KING, a municipal corporation
Steven Adams, City Manager
ATTEST:
Erica Sonne, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Roy Santos, City Attorney
ARTIST:
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Artist is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. ARTIST’S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO ARTIST’S BUSINESS ENTITY.
01222.0001/360025.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF MONTEREY
On __________, 2023 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. 01222.0001/360025.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF MONTEREY
On __________, 2023 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. 01222.0001/360025.1 A-1
EXHIBIT “A”
SCOPE OF SERVICES
I. Artist will perform the following services:
A. Fabricate artwork according to the approved proposal for the piece titled Harvest at the King City Broadway Street Median Improvement Project and as set forth in Exhibit B, working through Art Consultant to verify any engineering and technical issues with appropriate departments in the City.
B. Deliver and install the artwork, ensuring any equipment necessary for installation is organized prior to date of installation.
C. Provide a clear maintenance report to the City.
II. As part of the Services, Artist will prepare and deliver the following tangible work products to the City:
A. Detailed engineering specifications
B. Wind load specifications
C. Installation instructions
III. In addition to the requirements of Section 6.2, during performance of the Services, Artist will keep the City updated of the status of performance by delivering the regular status reports. The Art Consultant will be the liaison between the consultant and the City and provide regular updates to the City.
IV. All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City.
V. Consultant Art piece shall be created by Saori Ide and Jonathan Russell.
VI. City Responsibilities
A. City shall provide Artist at no expense to Artist, all reasonably necessary information including but not limited to copies of existing designs, site plans, drawings, reports, list of required permits, and other existing relevant data, if any, needed by Artist in order to perform Artist’s obligations within fifteen (15) days of Artist’s written request itemizing the requested information. 01222.0001/360025.1
B. City shall provide Artist with any other reasonably necessary information concerning all applicable laws and regulations, including zoning or environmental regulations, within fifteen (15) days of Artist’s written request itemizing the requested information. Notwithstanding the foregoing, Artist shall be responsible for complying with all laws, including, without limitation, zoning and environmental laws and regulations.
C. City shall corporate with Artist in preparing the Site for the Artwork including but not limited to clearing the site for Artist to prepare the footing. City shall be responsible for bringing any necessary electricity to the site per Artist’s specification. City shall be responsible for any paving, pedestal or seating (if City has decided to incorporate) and landscaping around the Artwork after completion of installation of the Artwork.
01222.0001/360025.1 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
Graphic Representation of Sculpture:
Produce portrayed in each sculpture will be modified to include those determined by the City to best represent local crops.
C-1
01222.0001/360025.1
EXHIBIT “C”
SCHEDULE OF COMPENSATION
1. Compensation will be provided at 50% upon contract approval and 50% upon installation.
2. The total compensation for the Services shall not exceed $120,000, as provided in Section 2.1 of this Agreement.
D-1
01222.0001/360025.1
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Artist shall perform all services timely in accordance with the following schedule:
Fabrication commences (April 2023)
Progress Report (July/August 2023)
Fabrication (October 2023)
Site Preparation (November 2023)
Installation on-site (December 2023)
The installation timeline shall be dependent upon construction of the Downtown Plaza project and may be adjusted.