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Packet Pg. 300 Attachment: Program Support Service Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and 9 (i) Each Party represents and warrants to the other that:
(A) it is duly formed and validly existing under the laws of its jurisdiction of formation;
(B) it has the legal right and full power and authority to execute and deliver, and to exercise its rights and perform its obligations under, this Agreement; (C) all corporate or company action required by it validly and duly to authorize the execution and delivery of, and to exercise its rights and perform its obligations under, this Agreement has been duly taken; and
(D) this Agreement constitutes a valid and binding agreement enforceable against it in accordance with its terms.
(ii) Except as expressly provided in this Agreement or as required by law, no Party makes any warranties or guarantees to the other, either express or implied, with respect to the System, Program Support Services or any other subject matter of this Agreement, and, to the extent permitted by law, each Party disclaims and waives any implied warranties or warranties imposed by law.
(j) Counterparts. The Parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be signed by the Parties and each counterpart shall be deemed an original instrument as against any Party who has signed it. (k) Facsimile or Electronic Delivery. This Agreement may be duly executed and delivered by a Party by execution and facsimile or electronic format (including portable document format (.pdf)) delivery of the signature page of a counterpart to the other Party, and, if delivery is made by facsimile or other electronic format, the executing Party shall promptly deliver, via overnight delivery, a complete original counterpart that it has executed to the other Party, but this Agreement shall be binding on and enforceable against the executing Party whether or not it delivers such original counterpart.
(l) Dispute Resolution. In the event a dispute arises between the Parties regarding the application or interpretation of this Agreement, the aggrieved Party shall promptly notify the other Party of its intent to invoke this dispute resolution procedure within ten (10) business days after such dispute arises. If the Parties shall fail to resolve the dispute within ten (10) business days after delivery of such notice, each Party shall, within five (5) business days thereafter, nominate a senior officer of its management to meet at the Facility, or at any other mutually agreed location, to resolve the dispute. If the dispute remains unresolved within ten (10) business days after such a meeting has commenced, each Party, without further delay, shall have the right to pursue any and all remedies available at law or in equity. The pendency of any dispute under this Agreement shall not of itself relieve any Party of any duty to perform under this Agreement. (m) Non-Recourse. Notwithstanding anything to the contrary provided in this Agreement, it is specifically understood and agreed that there shall be absolutely no personal
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Packet Pg. 301 Attachment: Program Support Service Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and 10 liability on the part of any of the partners, members, shareholders, or affiliates of the Parties, or any of their respective directors, officers, employees, agents or representatives, (each, a “Protected Person”) for the payment of any amounts due or the performance of any other obligation of any Party under this Agreement. Each Party shall look solely to the assets of the other Parties for the satisfaction of each and every right or remedy under or in connection with this Agreement. In furtherance of the foregoing, Owner and Member each agrees that it shall neither seek or obtain, nor be entitled to seek or obtain, any deficiency or other judgment against any Protected Person for any action or inaction under or in connection with this Agreement, and Owner and Member each releases all such Protected Persons from any such claims by Member or Owner, as the case may be.
[Signature Page Follows]
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Packet Pg. 302 Attachment: Program Support Service Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and [Signature Page to Program Support Agreement]
IN WITNESS WHEREOF, the Parties have executed this Program Support Agreement as of the date first written above.
MEMBER:
City of San Jacinto,
a California municipal corporation,
d/b/a San Jacinto Power
By: ____________________________
Name: ___________________________
Title: ___________________________
OWNER:
Participate.Energy LLC
a Delaware limited liability company
By: ____________________________
Name: ___________________________
Title: ___________________________
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Packet Pg. 303 Attachment: Program Support Service Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and
EXHIBIT
A
PROGRAM SUPPORT SERVICES SCHEDULE
1. Member shall provide Level 1 System Support for all Systems included under the Power Purchase Agreement, including without limitation maintaining and coordinating all personnel, activities, and infrastructure reasonably required for such Level 1 Support Services. “Level 1 Support Services” shall include:
a) Provide first contact and customer interaction for any System-related communication via email and telephone;
b) Clarify general System functions and features via email or telephone upon receipt of customer requests;
c)To the extent reasonably possible by telephone or email, verify, analyze and correct System problems reported by customers;
d) Create incident reports, including initial analysis, for System problems that cannot be corrected by telephone or email;
e) Forward incident reports to O&M Provider promptly upon report of any System problem that cannot be corrected by Member by telephone or email; f)Period reporting to Owner and O&M Provider of all significant System-related customer interactions.
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Packet Pg. 304 Attachment: Program Support Service Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Framework CalChoice Distributed Energy Resource Program Agreement This Framework CalChoice Distributed Energy Resource Program Agreement (this “Agreement”) is entered into as of [February 1, 2023] (the “Effective Date”), among the parties listed below (each, a “Party” and together the “Parties”). This Agreement comprises (i) the Key Terms set out below (the “Key Terms”), and (ii) all schedules referenced in the “Attachments” section of the Key Terms.
Key Terms
This Agreement sets out the terms and conditions on which the California Choice Energy Authority (“CalChoice”) and the City of San Jacinto (“Member”) shall market and offer a program for the deployment of traditional solar PV systems and Powerwalls (“System”) to certain residential customers (“Customers”) and new homes builders (“Builders”) located in the Member territory, with sales and educational support provided by Member, product and product installation support provided by Tesla, purchase and operation of System by Participate Energy Fund, LLC (“Program Fund”) for the sale of energy from the Systems to Member for resale to Customers (the “Program”).
Parties:
Tesla: Tesla, Inc., a corporation organized under the laws of Delaware.
CalChoice: California Choice Clean Energy Authority, a California Joint Powers Authority.
Member: City of San Jacinto, a California municipal corporation.
The Program Fund: Participate Energy Fund, LLC
Framework Agreement Term:
Term: The period commencing on the Effective Date and ending on the second (2 nd
)
anniversary of the Effective Date (the “Term”), which shall automatically be extended for additional, one-year periods upon the expiration of the thencurrent Term unless terminated early in accordance with this Agreement.
Notices:
Tesla Notice Address: 1 Tesla Road, Austin, TX 78725, USA.
Attn: Energy Notices / Legal Department
Phone: +1. 512.516.8177.
Email: [email protected].
Tesla Address for submission of
Purchase Orders:
www.tesla.com
CalChoice Notice Address: 44933 Fern Avenue, Lancaster, CA 93534.
Attn: Jason Caudle, City Manager
Phone: 661.723.6110
[email protected]
Member Notice Address: 595 S. San Jacinto Avenue, San Jacinto, CA 92583 Attn: Robert Johnson, City Manager
[email protected]
Program Fund Notice Address: Participate.Energy, LLC
Attn: Ethan Friedman
c/o Virtual Post Solutions, Inc.
2093 Philadelphia Pike #3125
Claymont, DE 19703
[email protected]
Commented [CH1]: BBK: Change to match
definition of Program Fund above. If this is actually
correct, then need to make change to above.
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Packet Pg. 305 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and NDA:
NDAs: The non-disclosure agreement dated [MMM DD, YYYY] between Tesla, The Program Fund and Member.
Attachments:
The attachments below are incorporated by reference into this Agreement. In the event of any conflict, the order of precedence shall be (i) these Key Terms and (ii) the Schedules, in order of appearance.
Schedule 1: Program Terms and Conditions
Schedule 2: Pricing
Attachment A: Form of Customer Agreement
Attachment B: Form of New Homes Builder Framework Agreement Attachment C: Form of Customer Order – Program Terms
EXECUTED by the Parties on the Effective Date.
CALIFORNIA CHOICE CLEAN ENERGY AUTHORITY
(SIGNATURE)
(PRINT NAME)
(PRINT TITLE)
CITY OF SAN JACINTO
(SIGNATURE)
(PRINT NAME)
(PRINT TITLE)
TESLA, INC.
(SIGNATURE)
(PRINT NAME)
(PRINT TITLE)
PARTICIPATE ENERGY FUND, LLC
(SIGNATURE)
(PRINT NAME)
(PRINT TITLE)
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Packet Pg. 306 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Schedule 1
Program Terms and Conditions
1. The Program. The objective of the Program is to deploy eligible Systems with a target of 500 MW of direct current capacity throughout the territorial boundaries of Member and the Community Choice Aggregation (“CCA”) service territories managed by Member or its CCA partners, including, but not limited to, the cities of:
San Jacinto, Pico Rivera, Rancho Mirage, Apple Valley, Pomona, Baldwin Park, Santa Barbara, Palmdale, and Lancaster (the “Territory”), as further set forth in this Agreement (the “Objective”).
2. Program Development.
(a) Geographic Focus. Membershall target all residential Customers and Builderslocated or operating withinthe portion of the Territory that is located within Member’s jurisdictional boundaries (the “Member Territory”) through the Master Marketing Plan.
(b) Site Eligibility. Eligible sites include existing single-family residential properties (“Existing Homes”) and single-family residential properties under construction by participating Builders in accordance with a New Homes Builder Framework (“New Homes”) located in the Member Territory. (c) Marketing Strategy & Outreach. The Master Marketing Plan shall be jointly developed by the Parties and designed to enlist the participation of Customers and Builders located in the Member Territory.
(i) Marketing Strategy. Within thirty (30) days, Member shall develop a strategy for marketing and promoting the Program, including:
1. Specific tactics that will be used to execute the Master Marketing Plan strategy;
2. An annual budget and description of dedicated resources that will be used to support Program marketing efforts;
3. Specific communications to be made through its sales channels; and
4. Dedicated education and links to the Tesla Products offering on the Member website. (ii) Marketing Outreach. Member shall provide consistent and targeted marketing outreach consistent with the Master Marketing Plan to prospective Customers and Builders in the Member Territory.
(d) Sales Support. Member shall:
(i) Provide sales support for interested Customers and Builders by phone, email, and chat; (ii) Provide educational information regarding Tesla Products, economics, billing, maintenance, installation and technical performance of the System and components thereof; and (iii) Convert inbound interest and leads into Orders(as defined herein) that (i) that Customers may submit to Tesla through the Existing Homes Retrofit Energy Order Tool; and (ii) participating Builders may submit to Tesla through the New Homes Energy Order Tool. (e) Order Funding. The Program Fund shall be obligated to pay for Orders placed in accordance with the Program criteria set forth herein and that shall own and operate the Systems in accordance with the terms and conditions of each Customer Agreement.
3. Customer Eligibility; Engagement.
(a) Eligibility. To be eligible for participation in the Program, a Customer must: (i) either own an Existing Home or have entered into an agreement with a Builder to purchase a New Home, (ii) be an existing participant, or agree to become a participant, in the Member’s CCA with utility service provided by Southern California Edison (“Utility”), (iii) agree to host a System installed on the home and to provide the Program Fund, as System owner, and its agents with a non-exclusive license
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Packet Pg. 307 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and (the “Site License”) for access to the Site for the entire term of the Customer’s participation in the Program for the purposes operating and maintaining the System; and (iv) agree to purchase an equivalent amount of energy generated by the System pursuant to a Solar Power Purchase & Energy Storage Services Agreement (each, a “Customer Agreement”) using the form attached hereto as Attachment A.
(b) Customer Engagement. Member shall encourage Customers with New Homes to accept the transfer and assumption of a Customer Agreement from a participating Builder in accordance with the terms and conditions of the applicable New Homes Builder Framework as more particularly described in Section 4. Member shall encourage Customers with Existing Homes to place Orders directly with Tesla and to enter into a Customer Agreement in accordance with Section 5.
4. New Homes Builder Framework Agreement.
(a) Builder Framework Agreement. During the Term, the Parties may consider Builders for participation in the Program. Upon Tesla confirmation of Builder eligibility, Tesla and each participating Builder will enter into a New Homes Builder Framework Agreement (the “Builder Framework”) in the form attached as Attachment B. Material deviations from the Builder Framework are not permitted without unanimous written agreement of the Parties. (b) Builder Framework Obligations. Member will require, pursuant to each Builder Framework, that Builders deliver and maintain the following to remain eligible for participation in the Program:
(i) A fully executed Builder Framework;
(ii) Community Specific Terms setting forth the Tesla Product Suite, eligible System information and Pricing applicable to the particular subdivision of new homes (each, a “Community”); (iii) An executed Builder non-disclosure agreement in the form attached to the Builder Framework;
(iv) Orders as set forth in Section 5 placed in accordance with each Builder Framework; (v) For each Order, a “solar ready” home that will include internal conduit installation, roof dry in and order details developed in consultation with the buyer of each applicable home in the Community (each, a “Home Owner”) sufficient for Tesla to complete installation of Tesla Products and the home to pass inspection by the applicable building department as the authority having jurisdiction (“AHJ”); and
(vi) Ongoing compliance with the Builder Framework and Program requirements as Tesla, Member and CalChoice may mutually agree to update from time to time.
5. Orders.
(a) During the Term, Member shall direct eligible Customers to the Existing Homes Energy Order Tool at www.tesla.com and Builders to the New Homes Energy Order Tool developed by Tesla for each Builder to place orders for Tesla Products for installation on Existing Homes or New Homes in the Member Territory in accordance with these Program terms and the form of Customer Order – Program Terms set forth in Attachment C (“Orders”).
(b) Tesla shall deliver and install Tesla Products in accordance with each applicable Order. The Program Fund shall purchase and pay for the quantities and types of Tesla Products at the prices stated in each applicable Order. Tesla will review each submitted Order to ensure that it tracks the Program criteria and the Community Specific Terms, if applicable. If Tesla reasonably believes that the Order does not track the Program criteria or the Community-Specific Terms, it will notify the Parties and the Parties will then reasonably cooperate to resolve the issue. (c) For each Order that is accepted by Tesla (each, an "Accepted Order"), Tesla shall supply, install and commission the Tesla Products at the site identified in that Accepted Order in accordance with that Accepted Order and the Work Standards described in Section 8(a) (the “Work”). Accepted Orders will be subject to Tesla’s standard terms and conditions.
Commented [CH2]: BBK: What are these?
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Packet Pg. 308 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and (d) For purposes of this Agreement and each Accepted Order, “Tesla Products ” means a Traditional
PV System with a Powerwall, as more particularly set forth in the Community Specific Guidelines of each Builder Framework. A “Traditional PV System” means a traditional solar photovoltaic generating system comprising of solar modules, an inverter and various balance of system components. A “Powerwall” means an energy storage system manufactured by Tesla and accompanying Tesla accessories. Each Traditional PV System, Powerwall shall consist of those that correspond to the specifications published in the Tesla Partner Portal as of the date when an Order for such Tesla Product is submitted.
(e) Tesla agrees to provide Member with access to a platform managed by Tesla that enables access to and control of distributed energy resource assets (“DER Assets”), manufactured by Tesla and owned directly or indirectly by Member or the Program Fund, for monitoring, aggregation, and control (the “Aggregation Platform”). Tesla will not charge Member or the Program Fundany fees for access or use of the platform, but otherwise reserves the right to establish the terms and conditions for Member’s access to the Aggregation Platform within an Aggregation Platform Subscription Agreement. Access to the Aggregation Platform excludes aggregation services offered by Tesla.
(f) The Parties acknowledge and agree that Tesla can choose at any time to discontinue a product, feature or option related to any one or more Tesla Products and, in Tesla’s sole discretion, can choose whether to provide a comparable product, feature or option, or terminate any affected Order before installation of any Tesla Product. If Tesla fails to provide a comparable product, feature or option to Member’s reasonable satisfaction, Member may terminate any affected Order before installation of any Tesla Product.
6. Pricing; Order Payment.
(a) Pricing. Programmatic pricing for Tesla Products is set forth in Schedule 2 (the “Pricing”). The System size or design may be adjusted by Tesla in its reasonable discretion based on a variety of factors, including installation complexity or product availability, provided that the Pricing remains at or below the Pricing set forth on the Program website. If that happens, we will update the Pricing in the applicable Order; Orders with updated Pricing that exceeds the Pricing set forth on the Program website and that are not accepted will be terminated. (b) Order Payment. For Accepted Orders, the price for the Work performed by Tesla under each Accepted Order shall be the Contract Price identified in that Accepted Order. The Program Fund shall pay the Contract Price for each Accepted Order plus applicable taxes within 30 days after receipt of Tesla’s invoice, which Tesla shall provide after the affected Tesla Products have been installed and passed inspection by the AHJ. Passed inspection shall also be deemed “Acceptance” in this Agreement and in each Builder Framework.
7. Title; Risk of Loss. Title to and risk of loss for the Tesla Products shall pass to the Program Fund after Acceptance.
8. Permits. Customers and Builders, as the case may be, shall bear the obligation to obtain and maintain all permits required for Tesla to install each Tesla Product (the “Permits”), except that Tesla shall include the cost of Permits in Orders for Existing Homes.
9. Installation.
(a) Work Standards. Tesla, or its approved subcontractors, will perform the Work according to Tesla’s standard practices and the “Tesla Work Standards” set forth in Exhibit 2 to each Builder Framework exercising the reasonable skill and care of an installation contractor and in accordance with mandatory laws, regulations and permits applicable to the Work. (b) Subcontractors. Tesla will be responsible for all work performed by, and acts or omissions of, each subcontractor and will ensure that all subcontractors are licensed as required by applicable law. (c) Safety. Tesla shall ensure that all Tesla employees and subcontractors comply with Builder’s safety
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Packet Pg. 309 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and procedures and requirements while on Sites during prosecution of the Work .
10. Failure to Perform.
(a) If any Party believes that any other Party isnot satisfying its obligations under this Agreement or with respect to an Order, such Party must notify the other Party in writing. Whichever Party is notified of not meeting its obligations will have 30 days after receiving that notice to correct the issue. If not, whoever gave the notice can terminate the affected Order or this Agreement in accordance with Section 13.
(b) In addition, if Tesla notifies the Parties of the Program Fund’s failure to pay the Price for an Order, Tesla can suspend work on that Order and, if not cured within ten (10) days, Tesla can suspend performance under this Agreement.
(c) If a Customer or Builder terminates an Order for Tesla’s failure to perform before installation of the Tesla Products for that Order has commenced, Tesla will return any payment(s) made toward the Price for those products.
(d) If either partyParty terminates an Order for the other partyParty’s failure to perform, except as specified in the next sentence, Tesla may take back all components of any Tesla Products Tesla delivered but that have not yet been installed for that Order and shall not have any further obligation to deliver product pursuant to this Agreement or that Order. In addition, if an Order is terminated pursuant to this Section, Tesla will complete the installation of Tesla Products where installation is partially complete, unless otherwise requested by the Program Fund (in which case, Tesla will deinstall and remove the Tesla Products from the affected home and return the jobsite to its original condition, at no cost). Each Party will also be able to pursue all rights and remedies available at law or in equity with respect to the failure to perform, except as otherwise provided in Section 13, below. Breaches of one or more Orders will not constitute breaches under any other Orders or under this Agreement, and breaches of this Agreement independent of any Orders shall not constitute breaches of any Orders.
11. Warranties.
(a) Starting on the date of installation, Tesla warrants to the Program Fund that all materials, equipment and work furnished by Tesla as part of an Order will be:
(i) of good quality, free from fault and defects, and
(ii) performed in a good and workmanlike manner, in accordance with all applicable laws, building codes and ordinances, and in strict conformity with the Order.
If the Program Fund notifies Tesla within 1 year after Acceptance (for Existing Homes) or the initial close of escrow by a Home Owner (for New Homes), Tesla shall, at its sole expense, immediately correct or replace any Work that is defective or determined to be not in accordance with the requirements of the above warranties.
(b) Tesla’s warranties in this Agreement are limited, as they do not cover (i) any defect or damage to the extent caused (A) by events that are (1) beyond Tesla’s reasonable control, (2) not reasonably foreseeable, and (3) not caused by Tesla’s or its subcontractor’s negligence, or (B) by Customer or Program Fund misuse or negligence, and (ii) any material or equipment connected to the Tesla Products that Tesla did not install. Tesla is not providing any warranties in connection with this Agreement other than those in this Agreement or in the product warranties provided by Tesla pursuant to Section 11(c), even if those other warranties are express or implied by any law. (c) Tesla's warranties under this Agreement shall in all cases survive termination of this Agreement and the transfer of title in the home to a third-party purchaser, except for a Home Owner (whose warranty is set forth in Sections 11(e) and 11(f)).
(d) With respect to any warranty claim by the Program Fund under Section 11(a) for the correction, replacement and warranty work, the remedies set forth in Section11(a) and in Sections 10(d) and
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Packet Pg. 310 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and 1 1, as applicable, are the Program Fund’s sole and exclusive remedies. For clarity, the foregoing shall not limit the Program Fund’s ability to bring claims for other purposes not related to the correction, replacement and warranty work as set forth in this Section 11(d), including, without limitation, the Program Fund’s rights to indemnification under Section 14. (e) If a Home Owner exercises a buyout option and purchases any Tesla Product from the Program Fund, Tesla will cover each Home Owner with limited warranties for Tesla Products in the forms attached as Exhibit 3 to each Builder Framework, as applicable. (f) In addition, Tesla will provide to each Home Owner the workmanship warranty attached as Exhibit 4 to each Builder Framework, assuming the Program Fund assigns that warranty to the Home Owner.
(g) The manuals and equipment warranties for Tesla Products are available upon request after each Order.
12. Proprietary Rights.
(a) Ownership. As between the Parties, Tesla shall remain the sole and exclusive owner of any and all Proprietary Rights associated with the System or any parts or derivations thereof. “Proprietary Rights” means patents, trademarks, copyrights, mask work rights, trade secrets and any other intellectual or proprietary rights.
(b) License. Tesla hereby grants to Member and CalChoice a limited, non-exclusive, non- sublicensable, non-transferable license to use the materials that Tesla provides for implementing the Master Marketing Plan and marketing the Plan in accordance with this Agreement. Except for the foregoing, no license or other right to Tesla’s Proprietary Rights is granted or implied hereby.
13. Termination.
(a) Termination for Cause. EachParty may terminate its participation in this Agreement or any Accepted Order for cause in the event (i) an insolvency event involving one of the other Parties; or (iii) any Party has materially breached any provision of this Agreement (other than non-payment) and, within 30 days after receipt of written notice of such breach from a non-breaching partyParty, the breaching partyParty has failed to cure such breach or, in the event the breach cannot reasonably be cured within such 30 day period, submit a plan for cure acceptable to each non- breaching partyParty in its reasonable discretion. The termination of this Agreement by any single Party shall result in the termination of this Agreement as to all Parties. (b) Insolvency Event. An “Insolvency Event” occurs with respect to a Party (i) if it is adjudged bankrupt; (ii) if it makes a composition or arrangement with its creditors; (iii) if it has a winding up petition or a petition for an administration order presented against it; (iv) if it has a receiver or manager or administrative receiver or provisional liquidator appointed; or (v) upon the happening of any other event of insolvency.
(c) Effects of Termination. Except as otherwise set forth in this Agreement, the expiration or termination of this Agreement will not affect any rights or obligations of the Parties that were incurred or that accrued prior to such expiration or termination. Termination shall not be deemed an election of remedies, and the non-defaulting partyParty shall have all rights and remedies available under applicable law in connection with and following such termination.
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Packet Pg. 311 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and
14. Indemnification
.
(a) Except to the extent permitted by this Agreement, noParty to this Agreement will be obligated to indemnify any other Party from any losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses, including reasonable legal fees (“Losses”) to the extent arising out of or due to the negligence or willful misconduct of such other Party. For purposes of this Agreement and each Builder Framework, “Indemnified Parties” means for each Party, (i) the Party and any person providing financing to the Party with respect to the System, (ii) any affiliate of the persons set forth in clause (i), and (iii) any director, officer, partner, member, manager, agent or employee of a person described in clause (i) or (ii); and,“Indemnifying Party” means each other Party, as the context requires.
(b) Tesla’s Indemnities. Tesla will indemnify, defend and hold harmless each other Party’sIndemnified Parties from any Losses arising out of any claim, action, suit, proceeding, investigation made or brought by any third party (“Claims”):
i. that Tesla Products (or any component or software thereof) or Tesla’s Work pursuant to any Accepted Order infringes the intellectual property rights of a third party, other than a Claim for which such Party is responsible under Section 11(c). In addition, if such Party is enjoined from the use, operation or enjoyment of Tesla Products or any part thereof as a result of any Claim alleging that Tesla Products or Tesla’s Work infringes the intellectual property rights of a third party, Tesla will at no cost to such Party, at Tesla’s option: (1) have such injunction removed, (2) substitute non-infringing goods or processes, or (3) modify the infringing goods or processes so they become non- infringing and provide the same or better functionality and performance relative to the affected item’s then-current functionality and performance; and ii. in connection with the design, construction, installation, maintenance, workmanship, materials or functionality of any materials, equipment and work furnished by Tesla, except with respect to any modification by any party other than Tesla (directly or indirectly) or use or reuse of Tesla Products that are the subject of an Accepted Order other than as permitted under this Agreement or their warranties. (c) Member, CalChoice and Program Fund Intellectual Property Indemnity. Member, CalChoice and Program Fund will indemnify and hold harmless Tesla and Tesla’s Indemnified Parties from any Losses arising out of Claims alleging infringement to the extent involving:
i. a particular design, process or product required or specified pursuant to any Accepted Order or where the copyright violations are contained in drawings, specifications or other documents prepared or provided by You or others for whom You are responsible, ii. any modification by any party other than Tesla (directly or indirectly), use or reuse of Tesla Products other than as permitted under this Agreement or their warranties, iii. use of Tesla Products in combination with any other products, materials or equipment not expressly authorized in writing by Tesla in circumstances where the infringement would have been avoided by the use of Tesla Products not so combined, unless such other products, materials or equipment are provided, required or approved by Tesla (as indicated by reasonable evidence) for, or are intrinsic to, use of Tesla Products, or iv. any modifications or changes made to Tesla Products by any party other than Tesla other than at the direction (as indicated by reasonable evidence) of Tesla in circumstances where the infringement would have been avoided without such modifications or changes.
15. Limitation of Liability. Except for indemnification obligations (Section 14), breach of confidentiality (Section 17), or any gross negligence or willful misconduct, the Program Fund’s and Tesla’s total liability for all damages of any kind arising out this Agreement will not exceed $1,000,000.00 and neither Member nor CalChoiceshall bear any liability for any damages of any kind arising out this Agreement, and no Party will have to pay any otherParty for any indirect, special or consequential damages.
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Packet Pg. 312 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and
16. Force Majeure. Each Party shall be excused from performance and shall not be considered to be in breach with respect to any obligation hereunder other than any obligation to pay money due and owing, if and to the extent that such Party’s failure of, or delay in, performance is caused by or results from acts or circumstances beyond the reasonable control of such Party (a“Force Majeure Event”); provided:
(a) such Party gives the other Parties notice describing the particulars of the Force Majeure Event as soon as is reasonably practicable and in any event within ten (10) Business Days after the discovery of the Force Majeure Event and its impact on such Party’s performance; (b) the suspension of performance is of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event;
(c) the Party uses reasonable endeavors to:
(i) overcome or mitigate the effects of such occurrence, and (ii) minimize costs and expenses attendant to or arising from such occurrence; (d) when the Party is able to resume performance of the affected obligations, such Party shall so notify the other Party and promptly resume performance;
17. Confidentiality; Publicity.
(a)Except for communications exchanged between each Party, each Party will keep any disclosures, as well as the terms of this Agreement, confidential in accordance with the non-disclosure agreements between them (the “NDAs”) and agree that this Agreement is confidential information of each of them for purposes of the NDAs. (Even though the NDAs are separate documents, they are considered part of this Agreement).
(b) Neither Party will advertise or issue any public announcement about this Agreement, or use the other Party’s mark, name or logo in any marketing literature, web sites, articles, press releases (including interviews with representatives of media organizations of any form), or any other document or electronic communication, without the other Party’s written consent. (c) Nothing in this Agreement, the NDAs, or any other agreement between the Parties limits or prohibits any announcement, disclosure, or other act that is required by law, including, but not limited to, the California Public Records Act.
18. Governing Law; Disputes.
(a) The Parties agree to comply with all applicable laws and regulations in connection with this Agreement. This Agreement is governed by the laws of the State of California. Any dispute arising out of or relating to this Agreement shall be brought in the Superior Court of California, County of Los Angeles, or the United States District Court for the Central District of California. (b) The Parties are not bound by any terms relating to Tesla Products or other matters that are not contained in this Agreement or the affected Order.
(c) Each of the Parties also agree to promptly notify the other’s senior level management if there is any dispute relating to this Agreement or any Orders and to try to resolve the dispute in good faith.
If we are unable to resolve a dispute within 20 days after that notice is given, then either of us can take the dispute to arbitration through Judicial Arbitration and Mediation Services (“JAMS”) according to JAMS Streamlined Arbitration Rules. The existence, content and result of the arbitration will be confidential. The arbitration will be conducted by a single arbitrator in English and in Los Angeles, California, unless otherwise agreed by the Parties. We will each bear our own expenses in the arbitration and will share equally the costs of the arbitration unless the arbitrator assigns costs to one of us. Judgment upon the award rendered in the arbitration may be entered in any court of competent jurisdiction
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Packet Pg. 313 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and
19. Miscellaneous
.
(a) Representations. Each Party represents and warrants to the other Parties that (i) it is a legal entity, duly organized, validly existing and in good standing under the laws of jurisdiction of incorporation; (ii) this Agreement constitutes a legal, valid and binding obligation of such Party enforceable in accordance with its terms; and (iii) the execution, delivery and performance of this Agreement (A) is within its powers, (B) has been duly authorized by all requisite action and (C) will not violate any agreement, commitment, certificate or other document to which it is a party or by which any of its assets may be bound or affected.
(b) Compliance with Law. Each Party will comply with all applicable laws and regulations in connection with its performance under Agreement.
(c) Notices. All notices under this Agreement must be in writing and must be sent via email, or express and/or certified mail, to the contacts identified in the Key Terms. (d) Assignment. Tesla or the Program Fund can assign this Agreement and each Accepted Order (i) to an affiliate of Tesla or the Program Fund, respectively, and (ii) as collateral in connection with its financing activities, in either case without the need for consent from any other Party. (e) Insurance. Each Party shall carry and maintain in force, with reputable insurance companies authorized to do business in the jurisdictions where the portion of the Member Territory is located.
Each of the Parties shall each maintain all insurance that such Party is required by law to maintain.
In connection with the Work pursuant to each Builder Framework and Accepted Order, Tesla shall be required to maintain insurance as set forth in Exhibit 6 to the Builder Framework. (f) Cumulative and Certain Exclusive Remedies. Except as otherwise specifically set forth in this agreement, all rights and remedies provided under this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. (g) Entire Agreement; Severability. This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements, representations and understandings, oral or written, between the Parties regarding the subject matter hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such term shall be severable from the remainder of this Agreement and the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by the law.
(h) Amendment and Modification. No amendment or modification of this Agreement is effective unless it is in writing and signed by each Party.
(i) Waiver. No waiver by either Party of any provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right or remedy hereunder precludes any other or further exercise thereof or the exercise of any other right or remedy.
(j) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
(k) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon
4.2.e
Packet Pg. 314 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(l) Survival. Provisions of this Agreement which by their nature contemplate or govern performance or observance subsequent to the termination or expiration of this Agreement shall survive such termination or expiration.
4.2.e
Packet Pg. 315 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Schedule 2
Pricing
The following terms set forth in this table listed below (the “Pricing”) shall apply to each Accepted Order as of the date the Accepted Order is received by Tesla in accordance with the terms and conditions of this Agreement. The Parties agree that Tesla may, in its reasonable discretion, based upon community-specific factors, including installation complexity, as well as recent market factors and product availability, update the Pricing applicable to each Community pursuant to each New Home Builder Framework so long as the Pricing is at or below the Pricing set forth on the Program website. Pricing shall not exceed the Pricing on the Program website absent written Notice to the Parties(including email) and written acceptance by each applicable Party or any other method as may reasonably be agreed upon by the Parties.
Solution Price
Solar PV (Rooftop) $2.42/Wp
Powerwall – 1
st $11,500
Powerwall – Each Additional $7,000
15 Year Powerwall Extended Warranty - Each $650
Member Services $0.40/Wp of PV
Tesla Pre-Construction Services
Examples: Remove copper from roof; upgrade
structure; remove existing solar PV;
remove/relocate AC unit; remove/fix existing
generator; remove existing battery backup;
remove/relocate existing solar thermal;
remove/relocate rooftop vents; remove/trim tree;
clean roof surface; fix electrical code violation;
remove/relocate shelving; master-panel upgrade
(MPU) (situational)
14.5¢ PPA: $0 - $750 in pre-construction services
15.0¢ PPA: $751 - $2,500 in pre-construction services
15.5¢ PPA: $2,500 - $5,000 in pre-construction services Project Ineligible: > $5,000 in pre-construction services By way of example, for a typical System (7.6 kW Solar PV + 1 Powerwall) Solution Price
7.6 kW Solar PV $18,392
Powerwall – 1
st $11,500
Powerwall – Each Additional $0 (N/A)
15 Year Powerwall Extended Warranty - Each $650
Member Services $3,040
Tesla Pre-Construction Services $2,000
TOTAL: $35,582 (corresponds to a 15.0¢ Customer PPA)
4.2.e
Packet Pg. 316 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Attachment A
Form of Customer Agreement
[Insert]
4.2.e
Packet Pg. 317 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Attachment B
Form of New Homes Builder Framework Agreement
[Insert]
4.2.e
Packet Pg. 318 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Attachment C
Form of Customer Order – Program Terms
[Insert]
4.2.e
Packet Pg. 319 Attachment: CCA Framework Program Agreement - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Multiparty Non-Disclosure Agreement
Tesla, Inc. – Multiparty NDA (November 2019) 1 of 3 Confidential Information Effective Date: Tesla Contact:
This Multiparty Non-Disclosure Agreement (“NDA”) is entered as of the Effective Date between the Tesla entity (“Tesla”) and the company(ies) and individual(s) (each, a “Company”) identified below. Tesla and each Company are referred to herein as a “Party” and collectively as the “Parties.” Tesla and each Company agree as follows:
1. Purpose. Any Party hereto or its Affiliates (each, a “Discloser”) may disclose Confidential Information to another Party or its Affiliates (each, a “Recipient”) in order to consider a potential business relationship with each other or fulfill the objectives of such relationship (“Purpose”). “Confidential Information” means information disclosed by Discloser that is marked as confidential or proprietary, identified as confidential or proprietary at the time of disclosure (e.g. if disclosed orally or visually), or disclosed under circumstances by which Recipient should reasonably understand such information is to be treated as confidential or proprietary.
2. Confidentiality. Subject to Section 4, Recipient may not: (a) use Discloser’s Confidential Information for any reason except the Purpose; or (b) disclose Confidential Information to any individual or third party except to (i) its personnel, directors, consultants, professional advisors, and Affiliates, in each case that (A) have a “need to know” such Confidential Information for the Purpose and (B) are bound to confidentiality obligations that protect Confidential Information to at least the same extent as the terms of this NDA (collectively, “Authorized Recipients”), and (ii) another Party to this NDA which is informed in writing of the identity of the original Discloser with respect to such information unless the original Discloser instructed Recipient not to disclose such Confidential Information to another Party to this NDA, and upon receipt such Party shall be deemed to have received such information directly from the original Discloser and to be a Recipient. Recipient shall implement and maintain appropriate organizational, technical, and administrative security measures, exercising the same degree of care to protect Discloser’s Confidential Information that it uses for its own confidential information of a similar nature, but in no event less than reasonable care. Promptly after learning of any unauthorized use or disclosure of, and/or unauthorized attempt to access or modify, any Confidential Information in Recipient’s (or its Authorized Recipients’) custody or control, Recipient shall notify Discloser in writing and cooperate with Discloser to investigate and mitigate any adverse effects. Recipient shall be responsible for any unauthorized use or disclosure of Confidential Information by its Authorized Recipients.
3. Separate NDAs. This NDA shall not be deemed to: (a) modify or limit any separate non-disclosure agreement between two or more Parties (each, a “Separate NDA”); or (b) permit a Party to this NDA to disclose another Party’s Confidential Information without consent to any third party (e.g. under a Separate NDA or to unaffiliated third parties) or for any reason other than the Purpose, except as expressly permitted under this NDA.
4. Exceptions. The obligations of Section 2 shall not apply to information that: (a) is already known to Recipient at the time of disclosure without obligation of confidentiality, (b) is or becomes publicly known through no wrongful act or omission of Recipient, (c) is rightfully received by Recipient from a third party without obligation of confidentiality, (d) is approved for release by written authorization of Discloser, (e) was developed by Recipient independently and without the use or benefit of any of Discloser’s Confidential Information, or (f) must be disclosed pursuant to the California Public Records Act (Government Code section 6250 et seq.). A disclosure that Recipient is required to make pursuant to any order or requirement of a court, administrative agency, other governmental agency, or stock exchange will not be deemed a breach of Sections 2 or 6 of this NDA, provided that Recipient has to the extent permitted by law: (x) promptly notified Discloser in writing of such order or requirement, (y) given Discloser an opportunity to challenge or limit the disclosure requirement or seek an appropriate protective order, and (z) cooperated with Discloser to narrow the scope of such disclosure to only that portion of the Confidential Information that is necessary to fulfill the order or requirement.
A disclosure which complies with a Federal Acquisition Regulation permitting disclosures to the government concerning government contracts will not be deemed a breach of this NDA. Each Party is hereby given notice of the immunity set forth in 18 USC § 1833(b).
5. Anonymous Data. Tesla may share de-identified or anonymous data which does not directly identify the data subject(s), such as individuals, vehicles, products, or entities. Each Company agrees that it shall not, and shall not attempt to, identify any data subject.
6. No Publicity. Each Party agrees that it may not make any public disclosures relating to the existence of this NDA or the Purpose without the other Parties’ prior written consent.
7. Ownership. All Confidential Information and derivations thereof remain Discloser’s sole property, and no license or other right to Confidential Information or intellectual property is granted or implied in this NDA or by any disclosure. This NDA does not require any Party to disclose any information.
8. Affiliate. “Affiliate” means an entity which either controls or is controlled by a Party or is under common control with a Party, where “control” means the power to direct or cause the direction of an entity’s management and policies through ownership or control of at least 50% of its voting securities or ownership interest.
9. As-Is Disclosures. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. No other warranties are made whether express, implied, or statutory. All Confidential Information is provided on an “AS IS” basis.
4.2.f
Packet Pg. 320 Attachment: Tripartite NDA - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Battery Residential Multiparty Non-Disclosure Agreement
Tesla, Inc. – Multiparty NDA (November 2019) 2 of 3 Confidential Information Discloser disclaims any and all other representations, warranties, or assurances concerning the Confidential Information, including as to accuracy, performance, completeness, suitability, or third party rights.
10. Current and Future Development. Nothing in this NDA prohibits a Party from developing, or having developed, products or services that, without violation of this NDA, compete with other Parties’ products or services. No Party may be presumed to have violated this NDA solely because it uses, makes, has made, or offers products or services which compete with another Party’s products or services.
11. Return or Destruction. Confidential Information, and all copies thereof, remain Discloser’s property. Upon expiration or termination of this NDA or Discloser’s written request, each affected Recipient shall promptly return to Discloser all documents, presentations, and other tangible items of Confidential Information or, at the request of Discloser, certify in writing that all such Confidential Information has been destroyed; provided, however, that Recipient may retain and use such Confidential Information if and to the extent permitted by a license or similar right under a separate agreement. Recipient shall also use reasonable efforts to delete all electronic copies of Confidential Information under its control. If it would be unreasonably costly or burdensome for Recipient to immediately delete copies of Confidential Information from its routinely-made backup or disaster-recovery systems, then Recipient will not be required to do so until the next regularly-scheduled destruction of such copies in the usual course of business and in compliance with a reasonable back-up retention policy adopted by Recipient, provided that such copies remain subject to the requirements of Section 2 so long as they remain in Recipient’s custody or control. If data is restored to Recipient’s production systems from a backup or disaster recovery system after Confidential Information was otherwise required to be returned or destroyed, Recipient must either ensure that the restoration does not include any Confidential Information which should otherwise have been returned or destroyed or, if such Confidential Information is included in the restoration, securely delete such Confidential Information promptly after the restoration. This Section 11 shall not be applicable to Confidential Information subject to the California Public Records Act (Government Code section 6250 et seq.)
12. Termination. This NDA is effective as of the Effective Date and will expire 3 years thereafter. Any Party may terminate its participation in this NDA for any or no reason by giving 60 days’ prior written notice to the other Parties. Expiration or termination will not affect any Party’s rights or obligations with respect to Confidential Information disclosed before such expiration or termination, and such rights or obligations will continue as long as Recipient has custody of or control over Confidential Information.
Sections 2–7 and 10–14 hereof will survive for 5 years after the expiration or termination of this NDA.
13. Disputes; Venue. This NDA is governed by the laws of the county, state, and country specified below Tesla’s signature, in each case without regard to conflict of laws principles. Each Party will be jointly and severally responsible for the acts and omissions of its Affiliates and each of their respective Authorized Recipients. The rights of and damages incurred by a Party’s Affiliate will be deemed to be rights of and damages incurred by such Party. The Parties shall discuss in good faith a resolution to any conflict or dispute under this NDA. The exclusive venue for any judicial action arising out of or relating to this NDA will be the state, federal, or regional courts for the location specified below Tesla’s signature. The Parties, for themselves and their respective Affiliates and Authorized Recipients, hereby waive any challenge to venue and jurisdiction in such courts.
14. Miscellaneous. This NDA constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior agreements, representations, and understandings between the Parties regarding its subject matter. If any provision hereof is held by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this NDA shall remain in full force and effect. This NDA is written in the English language, and the English version shall prevail over any translation thereof. A waiver of any right hereunder does not imply a waiver of any other rights. No waiver, alteration, modification, or amendment of this NDA shall be effective unless in writing and signed by all Parties. This NDA may be signed in duplicate originals or in separate counterparts, each of which is effective as if the Parties signed a single original, and a facsimile of an original signature or electronically-signed version transmitted to the other Parties is effective as if the original was sent to the other Parties.
Any notice required or permitted by this NDA shall be made in writing and be deemed delivered upon verification of delivery to the other Parties. Each Party agrees that it shall not assign, transfer, or otherwise convey or delegate any of its rights or duties under this NDA (except to the successor in a merger, acquisition, or corporate reorganization of the assigning Party or, in the case of Tesla, to Tesla, Inc.) without the other Parties’ prior written consent, and any attempt to do so shall be void.
4.2.f
Packet Pg. 321 Attachment: Tripartite NDA - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Battery Residential Multiparty Non-Disclosure Agreement
Tesla, Inc. – Multiparty NDA (November 2019) 3 of 3 Confidential Information Tesla and each Company execute this Multiparty Non-Disclosure Agreement through their duly authorized representatives.
Tesla: Company: Participate Energy LLC
Signed: Signed:
Printed: Printed: Ethan Friedman
Title: Title: Managing Director
Date: Date:
Contact Information: Contact Information:
Legal Department Name/Dept.: Ethan Friedman
PO Box 15430, Fremont CA 94539, USA Address: 2093 Philadelphia Pike, Claymont, DE 19703 Phone: +1-650-681-5000 Phone: 917 301 2621
Governing Law: California
Venue: Santa Clara County, California
Company: Company:
Signed: Signed:
Printed: Printed:
Title: Title:
Date: Date:
Contact Information: Contact Information:
Name/Dept.: Name/Dept.:
Address: Address:
Phone: Phone:
4.2.f
Packet Pg. 322 Attachment: Tripartite NDA - Council meeting attachment (Approval Related to the San Jacinto Power Choice Solar and Battery Residential March 21, 2023
TO: City Council
REQUESTED BY: Travis Randel, Deputy City Manager, Development Services APPROVED BY: Robert A. Johnson, City Manager
SUBJECT: Requirements and Process for Development
RECOMMENDATION:
Staff recommends that the City Council receive and file this report.
DISCUSSION:
Issues have arisen over the past 12-24 months regarding land use on private property, zoning regulations, and unlicensed businesses operating in non-permitted areas throughout the City.
The City’s professional Planning and Development staff meets with property owners and provides information as to how the property in question is able to come into compliance with the development code, zoning laws, General Plan and the City’s Municipal Code.
The City’s Code Enforcement Team is charged with investigating, inspecting, and assisting property owners to come into compliance with the City’s Municipal Code. All staff members, including the City Manager, have a duty to follow the Municipal Code and insure that the City is protected against claims from state and other agencies that it has not enforced the law. As an example, if the state or other agencies find that the City is not enforcing the Municipal Code, and was aware of an issue inside the City limits that was not addressed, the City would be penalized by fines of up to $10,000 per day until the issue(s) is/are resolved.
In California, all cities and counties are required to adopt a general plan. The general plan is a comprehensive policy document that shapes the long-term physical development of a jurisdiction’s planning area. The general plan must include at least seven state-mandated elements including land use, circulation, housing, conservation, open space, noise, and safety elements, as specified in Government Code Section 65302, to the extent that the issues identified by State law exist in the City’s planning area.
The General Plan acts as a “constitution” for development and is the jurisdiction’s primary legal document governing growth, development, and resource management issues. Development regulations (e.g., zoning and subdivision standards) are required by law to be consistent with the General Plan. The General Plan expresses the community’s development goals and embodies public policy relative to the distribution of future land uses, both public and private. The California Supreme Court has described general plans as the “charter to which [zoning] ordinance[s] must conform”, but the general plan extends far beyond zoning and land use. The General Plan is more than the legal underpinning for land use decisions; it is a vision of how a community will grow, reflecting community priorities and values, while shaping its future.
Under state law, subdivisions, capital improvements, development agreements, and many other
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land use actions must be consistent with the adopted general plans. In counties and general law cities, zoning and specific plans are also required to conform to the General Plan. In addition, preparing, adopting, implementing, and maintaining the General Plan serves to identify the community’s land use, circulation, environmental, economic, and social goals and policies as they relate to future growth and development.
Applying the General Plan
The General Plan is intended for use by a broad range of persons, including City decisionmakers, City staff, developers, and community members, to serve the following purposes:
• To identify land use patterns, growth, transportation, environmental, economic, and community goals and policies as they relate to land use, conservation, development, and provision of community services and facilities.
• To articulate a vision and strategy for the future development of San Jacinto and its residents.
• To enable the City Council and Planning Commission to establish long-range land use, transportation, services, conservation, and growth goals and policies. • To provide a basis for judging whether specific private development proposals and public projects are in harmony with these goals and policies.
• To inform citizens, developers, decision makers, and other jurisdictions of the policies that will guide development and conservation within San Jacinto.
Under State law, many actions, such as development projects, specific plans, master plans, community plans, zoning, subdivisions, public agency projects, and other decisions must be consistent with the General Plan. State law requires that the City's ordinances regulating land use (Development Code) be consistent with the General Plan. The Development Code, individual project proposals, and other related plans and ordinances must be consistent with the goals and policies in the General Plan.
The central basis of the General Plan is the Land Use Element. The Land Use Element is a guide to land use planning within the City of San Jacinto and affects many of the issues addressed in the other General Plan elements. The Land Use Element identifies the type and location of future land uses within the City. The specific land uses and their location within the community in turn affect the remaining General Plan elements. For example, the location and type of land uses outlined in the Land Use Element affect the circulation system that is identified in the Circulation Element, and the allowable density of residential land identified in the Land Use Element affects the Housing Element policies. The Land Use Plan is designed to:
• encourage economic development throughout the City,
• enhance the City’s existing residential neighborhoods, • support expanded housing and employment opportunities, • and promote a strong sense of place and identity in San Jacinto.
The purpose of the Land Use Element is to describe present and planned land use activity that has been designed to achieve the community’s long-range goals for the future. The Land Use Element identifies the proposed general distribution, location, and extent of land uses such as
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residential, commercial, industrial, public institutional, and open space. The element consists of text, maps, and diagrams that outline the future land uses within the City and how these uses are integrated with the other General Plan elements and policies.
The maximum density or intensity permitted for an individual parcel is controlled by the land use designation. In addition to the land use designation, development of a parcel is influenced by a variety of factors including the physical characteristics of a parcel, compatibility with nearby uses, access and infrastructure limitations, market factors, and previous development trends.
The General Plan established five (5) Residential Land Use designations, eight (8) NonResidential Land Use designations, two (2) Mixed-Use Land Use designations and one Specific Plan Land Use designation for the 22,796 acre planning area.
Implementing the General Plan
As noted above, the City’s Municipal Code, which includes the Development Code, is required to be consistent with the General Plan. Unlike the General Plan, which provides rough development criteria, the Development Code establishes the land use permit requirements for specific uses, development standards and requirements, and performance and operational standards.
The Development Code includes a Zoning Map that further defines the development requirements within the General Plan Land Use classifications. For instance, the General Plan includes one commercial designation, Commercial (C); however, the implementing Zoning Map includes three implementing zoning districts including Commercial General (CG), Commercial Neighborhood (CN), and Commercial Regional (CR). Similarly, the Industrial General Plan Land Use Designation has two implementing zones, Industrial Light (IL), and Industrial Heavy (IH).
Table 2-2 of the Development indicates the uses allowed within each zone and the planning permit required to establish each use. For example, Medical Services – Clinic, Laboratory, Urgent Care is identified as a permitted use in the CG – Commercial General, CR – Commercial Regional, BP – Business Park, IL – Industrial Light, and IH – Industrial Heavy Zones. However, the same use requires a Minor Use Permit in the OP – Office Park Zone and a Conditional Use Permit in the MU – Mixed-Use, MU-E – Mixed Use Entertainment, and DV – Downtown Village Zones.
The segregation of land uses is intended to protect property rights while minimizing impacts to adjacent properties or nearby incompatible uses. For example, a Recycling Facility – Processing Facility is only permitted within the IH – Industrial Heavy Zone subject to the granting of a Conditional Use Permit. This limited application is intentional as Recycling Facilities have the potential to generate significant odor, noise, and traffic and typically involve the use or handling of hazardous materials in large quantities. For example, a battery recycling facility interacts with a significant amount of hazardous materials including heavy metals like lead, cadmium, and nickel, and have a high potential for fire or exposition. In addition, such uses have a history of resulting in contaminated soils and ultimately water sources, including drinking water. As such, it is reasonable to limit the placement of these facilities far from sensitive receptors, such as
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homes, schools, day cares and parks, as well as areas with high water inundation that may increase the contamination of drinking water supplies.
Uses that are identified as Permitted do not require the processing of a special permit or approval, and may be developed within the standards of the Development Code. For new construction or significant re-development, a Site Plan and Design Review (SPDR) application may be required. The SPDR application is intended to review the proposed project to evaluation compliance with the established development criteria, local, state and federal requirements (as applicable) and to provide the developer with a list of requirements as a result of their project, known as Conditions of Approval. The application of Conditions of Approval for permitted uses is limited to requirements outlined within the City’s Municipal Code, state or federal requirements, or the result of an environmental constraint.
For example, a Developer is proposing to construct a new restaurant within an existing parcel on San Jacinto Avenue within the CG – Commercial General Zone. Restaurants are expressly permitted uses within the CG Zone and therefore considered “Permitted”. However, the development requires the construction of a new building, parking lot, lighting, landscaping and other ancillary facilities, therefore the applicant is required to submit for an SPDR. During the SPDR process, representatives of the City’s various Development Service’s Departments (Planning, Building & Safety, Public Utilities, Engineering, Special Districts, and Fire Department) review the application to ensure that the new construction complies with the Development Code. While not exhaustive, these items include:
• Building setbacks
• Landscape setbacks
• Minimum parking requirements
• Minimum lighting requirements
• Storm water runoff
• Wastewater and Sewer capacity
• Water capacity
• Proximity to sensitive receptors
• Access and circulation
• Building heights
• Architectural standards
• Screening and buffering
• Solid waste storage
• Traffic visibility
• Utility connections and undergrounding
• Walls, fences, and hedges
• Landscape design, materials, and efficiency
• Sign regulations
• Use specific regulations
However, suppose that the developer now elects to construct a drive-through, rather than a sitdown restaurant. While the sit-down restaurant was a permitted use, a drive-through requires the processing of a Minor Use Permit (MUP). A MUP is a discretionary permit that is reviewed at
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the administrative or staff level. The intent of the MUP is to provide a higher level of review to ensure a use is compatible with existing and future uses in the area. For instance, while a drivethrough may be a relatively benign use within an existing shopping center, it may cause significant issues or challenges if it were placed in the middle of a residential neighborhood including traffic, noise, pollution, and odors. The MUP includes a series of findings that need to be made to approve the project to ensure computability and acceptability of the proposed use.
State and National Requirements
In addition to these requirements enumerated in the Development Code, the project must also be reviewed for compliance with applicable regional, state requirements, including Water Quality Management Plans, USACE 404 Permits, NPS Section 106 analysis, etc.
One of the most significant state and national requirements for new development is the National Pollutant Discharge Elimination System (NPDES), the Discharge Municipal Separate Storm Sewer System (MS4) Permit, and the Storm Water Management Program (SWMP). Established under the provisions of the Clean Water Act (1972), the NPDES Program is administered by the United Stated Environmental Protection Agency (USEPA). The USEPA delegates authority in California to the State Water Resource Control Board (SWRCB) which further delegates to the Regional Water Quality Control Boards (San Jacinto is located within the Santa Ana Regional Water Quality Control Board [SARWQCB]). Collectively (and generally), these program require certain improvements be implemented for any new development to address storm water runoff to protect drinking water sources, reduce pollutant discharge, and improve impaired water sources.
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Figure 1 - Santa Ana Watershed within Riverside County (Riverside County Flood Control Water Pollution Prevention)
Pursuant to the standards of the MS4 permit and requirements of the SARWQCB, developers are required to prepare a Preliminary Water Quality Management Plan (WQMP) to be reviewed and accepted by the permitting agency (i.e. City of San Jacinto) prior to approval of an entitlement.
The WQMP outlines the means and methods by which a development will comply with the MS4 and SARWQCB requirements for stormwater runoff. This is accomplished through various Site, Source, and Treatment Control BMPs. This is why, in part, nearly all new developments within the City construct retention basins, detention basins, biofilation basins, or other Best Management Practices (BMPs).
These facilities are require to address storm water runoff to ensure that the water is partially treated on-site to remove pollutants before being discharged into the city’s storm water system.
Once discharged into the storm water system, the water eventually makes its way to the San Jacinto River before discharging into Canyon Lake and ultimately Lake Elsinore. While making its journey to Lake Elsinore, much of the water percolates into the soil, where it is filtered further before joining the San Jacinto aquifer, the primary drinking water source for the San Jacinto Valley. The San Jacinto Basin is approximately 188,000 acres in size and has approximately 1,950 wells. The basin is also home to nearly 500,000 people with groundwater accounting for approximately 42% of the basin’s total water supply.
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The thresholds established by the SARWQCB for requiring a WQMP are relative low. Projects that meet or exceed the threshold, such as a 5,000 square foot parking lot, would require preparation and approval of a WQMP.
Category Threshold
New Development Projects 10,000 SF
Automotive Repair Shops SIC CODE
Restaurants 5,000 SF
Hillside Developments 5,000 SF
Developments adjacent to, or that discharge directly
into Environmentally Sensitive Areas
2,500 SF
Parking Lots 5,000 SF
Retail Gasoline Outlets(RGOs) 5,000 SF
Significant Redevelopment Projects 5,000 SF
Failure of a project to comply with the NPDES, MS4, or WQMP requirements can have significant financial and legal consequences imposed on both the City and the applicant, developer, or property owner. For instance, In 2022, the San Diego Regional Water Quality Control Board issued a $411,475 penalty on the owner of a three-acre, 16 lot residential subdivision that was under contstruction for failing to provide appropriate Stormwater Pollution Prevention Plan (SWPPP) BMPs.
In addition, under 33 U.S.C. 1319(c)(1) &(2) and 40 C.F.R. 122, the USEPA is authorized to pursue criminal charges against people or persons who knowingly or negligently allows for the discharge of pollutants from a direct source into a water of the United States without an NPDES or 404 Permit. Negligent violations face charges of up to 1 year and/or $2,500 to $25,000 per day. Subsequent convictions and penalties include up to 6 years and/or $100,000 per day.
In 2021, the USEPA settled a Clean Water Act case with KAG West of Tacoma for $133,225 for violations of the Industrial Stormwater General Permit by failing to comply with minimum BMPs related to operations between March 2017 and 2019.
In California, the Porter-Cologne Act provides authority to the regional board (SARWCQB) to issue civil penalties of up to $10,000 per day, per violation among other remedies deemed necessary by the agency.
In many cases, the local jurisdiction may also be held responsible for knowingly allowing unpermitted activities to occur within the jurisdictions authority. In other words, a property owner or developer is responsible for obtaining all permits and installing necessary BMPs for construction and post construction activities and failing to do so may subject the property owner to civil penalties and citations by various agencies. If a local agency knowingly allows for an unpermitted use or development, or a development in conflict with the approved plans or permits to operate, the state or national agencies may also issues civil penalties to the local jurisdiction.
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Environmental Requirements
The California Environmental Quality Act (CEQA), passed in 1970 and signed in to law by thenGovernor Ronald Reagan shortly after the United States federal government passed the National Environmental Policy Act (NEPA), is California’s broadest environmental law. CEQA’s primary functions are to provide decision makers with information about the environmental impacts of projects prior to granting approval and to allow the public to comment on the impacts of projects in their community. CEQA does not directly regulate land uses, but instead requires state and local agencies within California to follow a protocol of analysis and public disclosure of environmental impacts of proposed projects and, in a departure from NEPA, adopt all feasible measures to mitigate any impacts determine to be significant. CEQA is encoded in Sections 21000 et seq. of the Public Resources Code (PRC) with Guidelines for implementation codified in the California Code of Regulations (CCR), Title 14, Chapter 3, Sections 15000 et seq.
All projects undertaken by a public agency are subject to CEQA. This includes projects undertaken by any state or local agency, any special district (e.g., a school district), and any public college or university. CEQA also applies to discretionary projects undertaken by private parties that are subject to a public agency permit or approval. Aside from decisions pertaining to a project that will have a direct physical impact on the environment, CEQA also applies to decisions that could lead to indirect impacts, such as making changes to local codes, policies, and general and specific plans. Judgement or deliberation may be exercised by City staff, the Planning Commission, or the City Council.
CEQA does not apply to ministerial projects. A ministerial project is one that requires only conformance with a fixed standard or objective measurement and requires little or no personal judgment by a public official as to the wisdom or manner of carrying out the project. Generally, ministerial permits require a public official to determine only that the project conforms to applicable zoning and building code requirements and that applicable fees have been paid. Some examples of projects that are generally ministerial include building permits, grading permits, and issuance of business licenses.
Local governments with a permit approval (cities, counties, special districts) are referred to in CEQA as “Lead Agencies” and are tasked under CEQA with carrying out the environmental impact analysis. When a private development application is received, the lead agency must first determine if the activity is a “project” under CEQA. If the activity is not a “project”, then it is not subject to CEQA review. Assuming an activity is a “project,” the lead agency would then determine if the project is exempt from CEQA. There are a number of exemptions enumerated in the CEQA statues and guidelines. There are generally three groups of exemptions: statutory, categorical, and common sense.
EXEMPTIONS:
Statutory exemptions are exemptions explicitly granted by the legislature. These exemptions include feasibility and planning studies; adoption of coastal plans; ministerial projects; financial
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assistance to low or moderate-income housing; projects that are disapproved; Olympic Games; rates, tolls, fares and charges; family day care homes; and housing needs allocations (RHNA).
Categorical exemptions include classes of projects that have been determined not to have a significant effect on the environment and therefore exempt from CEQA. However, some categorical exemptions include qualitative and quantitative standards that may exclude some projects. For instance, Class 1 (Existing Facilities) exemption consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alterations of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former uses. Such activities may include additions to existing structures provided that the addition will not result in an increase of more than (1) 50 percent of the floor area of the structures before the addition, or 2,500 square feet, whichever is less; or (2) 10,000 square feet if (a) the project is in an area where all public services and facilities are available to allow for maximum development permissible in the General Plan and (b) the area in which the project is located is not environmentally sensitive. Other exemptions, such as Classes 3 (New Construction of Conversion of Small Structures), 4 (Minor Alterations in Land), 5 (Minor Alterations in Land Use Limitations), 6 (Information Collection), 11 (Accessory Structures), are qualified by consideration of where the project is to be located; as a project that is ordinarily insignificant in its impact on the environment may, in a particularly sensitive environment, be significant. Common CEQA exemptions in San Jacinto include:
• Class 1 – Existing Facilities
• Class 2 – Replacement or Reconstruction
• Class 3 – New Construction or Conversion of Small Structures • Class 4 – Minor Alterations to Land
• Class 5 – Minor Alterations in Land Use Limitations
• Class 11 – Accessory Structures
• Class 15 – Minor Land Divisions
• Class 31 – Historical Resource Restoration / Rehabilitation • Class 32 – In-fill Development Projects
The third group of exemptions is the “Common Sense” exemption. A project is exempt from CEQA if “the activity is covered by the common sense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA” (California Code of Regulations §15061).
When a Lead Agency determines that an exemption is appropriate for a project, it adopts a Notice of Exemption (NOE), which explains what exemption is being applied as well as a justification for its application. In cases where a project may fall into more than one exemption, exemptions may be “stacked.” For example, a parcel map, that is a subdivision with less than 4 residential lots, which includes a variance for lot width, may qualify for both a Class 15 – Minor
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Land Division as well as Class 5 – Minor Alterations in Land Use Limitations for the parcel map and variance respectively.
When a project is determined to not be exempt from CEQA, the lead agency will generally begin to prepare an Initial Study. The initial study evaluates 19 environmental factors including Air Quality, Biological Resources, Greenhouse Gas Emissions, Transportation/Traffic, Cultural Resources and Noise, as well as others. The evaluation of these factors identifies areas where a project has the potential to cause a significant impact on the Environment. The initial study may also be referred to as the Environmental Checklist.
The Checklist includes all 19 categories and provides a number of questions that the Lead Agency must identify as:
• Potentially Significant Impact
• Less than Significant with Mitigation Incorporated
• Less than Significant Impact
• No Impact
Such determinations must be demonstrated and substantiated by the public record. Typically, the Lead Agency would rely on a number of project specific technical reports such as a Biological Resources Report, Soils Report, Hydrology Report, etc., as well as previously adopted reports or studies such as the General Plan Programmatic Environmental Impact Report, or Federal Emergency Management Agency (FEMA) Floodplain maps.
"Substantial evidence" means that enough relevant information and reasonable inferences from the information contained in the record, that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence. (California Code of Regulations § 15384) Once the Initial Study is completed, the Lead Agency is required to determine the appropriate Environmental Determination. For projects that have less than significant impacts (as well as no impacts) in all 19 factors, the lead agency may elect to adopt a Negative Declaration (ND). A Negative Declaration is a written statement by the lead agency briefly describing the reasons that a proposed project will not have a significant effect on the environment and therefore does not require the preparation of an EIR. An ND can only be prepared when there is no substantial evidence that the project may have a significant effect on the environment.
Another option for the Lead Agency is the adoption of a Mitigated Negative Declaration (MND).
An MND is an ND with project revisions or mitigation measures that eliminate or reduce adverse
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impacts on the environment to a less than significant level. Similar to an ND above, an MND determination is based on substantial evidence. An MND would therefore include one or more mitigation measures that are to be implemented with the development of the project to ensure that any such impacts have been adequately mitigated. Mitigation can cover a wide range of topics and deal with all phases of the project. For instance, a project may be required to relocate a sensitive species (such as the San Bernardino Kangaroo Rat or LA Pocket Mouse, both of which are found along the San Jacinto River) which must be completed prior to any ground disturbing activities. Mitigation can also extend into the operation of a project. For instance, a large industrial project may be required to install charging or electrical outlets for refrigerated boxcars to reduce emission from the idling of semi-trucks during loading or unloading process.
A large industrial project may also be required to keep dock doors closed when not in use to limit noise impact to adjacent properties.
In the event that the Initial Study identified a project will have a significant impact and cannot be mitigated to a level of less than significant, the Lead Agency may adopt an Environmental Impact Report (EIR). An EIR is the “heart of CEQA” (State CEQA Guidelines § 15003[a]) and is the highest level of review under CEQA. An EIR is, first and foremost, an objective disclosure document; however, it does not advocate for, or against, a project. Rather, an EIR explains in detail the proposed project, the environmental setting, probable impacts, feasible ways of reducing or eliminating impact, cumulative impacts and alternatives to the project. An EIR requires additional studies, public comments, and findings prior to being adopted by the Lead Agency. In addition to identifying all feasible mitigation measures, an EIR must also:
“describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives. An EIR need not consider every conceivable alternative to a project. Rather it must consider a reasonable range of potentially feasible alternatives that will foster informed decision making and public participation. An EIR is not required to consider alternatives which are infeasible. The lead agency is responsible for selecting a range of project alternatives for examination and must publicly disclose its reasoning for selecting those alternatives. There is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 and Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376)” (State CEQA Guidelines §15126.6).
Just because significant environmental impacts are identified, CEQA does not require that projects be denied. The decision to approve or deny is left to elected officials or appointed decision makers. In those situations, the Lead Agency may elect to adopt a Statement of Overriding Considerations. The Statement of Overriding Considerations sets forth findings that
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details why the benefits of the project outweigh the significant unavoidable impacts of the project.
Expanding upon the drive-through restaurant example above, action taken on an MUP is a discretionary action subject to CEQA. In the event the drive-through is located within an existing, established commercial shopping center, the project would likely qualify for a small structure (Class 3) or in-fill (Class 32) CEQA exemption. However, the development of a new shopping center, industrial development, or truck terminal, would likely not qualify for a CEQA exemption and would need to prepare the necessary technical reports and documents to identify, disclose, and mitigate, as necessary, before being approved by the approval authority.
Entitlement Processing
Entitlements are planning level approvals that provide the property owner the ability and authorization from the City to construct, develop, re-develop, establish, or re-establish a use or development. Entitlements range from minor reviews for single-family residences, accessory structures, or additions, up to new commercial developments, residential subdivisions, or long term agreements, such as Development Agreements. Generally speaking, entitlements have three review tracts.
Administrative Review – Most of the City entitlements are completed at an administrative level with decisions being made by staff. These reviews include minor alterations such as fences, walls, signs, pools, room additions, patio covers, as well as Zoning Clearances for more complex, permitted developments. With the recent update to the Development Code as part of the General Plan 2040, most SPDR applications are reviewed administratively. Other entitlements, such as Minor Use Permits and Minor Variances are also reviewed administratively, but require some level of public notice.
Commission Review – The Planning Commission provides the second level of review for various projects. The Planning Commission is the review authority for items like Tract Maps (residential subdivisions), and Conditional Use Permits (CUP). These items require public noticing and a public hearing. Planning Commission meetings are held monthly on the 4th Tuesday of the month.
City Council Review – The highest level of review for entitlement projects is the City Council.
The City Council is the approval authority for policy level projects, such as Specific Plans, General Plan Amendments, Development Code Amendments, and Development Agreements. In most cases, these projects require public noticing and a public hearing for the Planning Commission in addition to a public notice and public hearing before the City Council. Adoptions of Ordinances, such as Development Code Amendments or Development Agreements, also require a second reading of the Ordinance, which is typically done on the City Council consent calendar.
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How to Change the Requirements
All projects and developments in the City are required to follow the Development Code and General Plan. The Development Code allows for specific deviations, or Variances, from certain standards, such as building setbacks, building heights, lot coverage, etc. However, there are not Variances to allow a use that is not otherwise permitted or conditionally permitted within a Zone.
For instance, continuing on the restaurant example above, a 2,000 square foot sit-down restaurant requires 10 parking spaces. However, the project site may only support up to 9 parking spaces.
The applicant may request a Variance to allow 9 parking spaces rather than the required 10. In making the request, the applicant is required to identify unique conditions that support the granting of the Variance. For instance, this restaurant may only operate from 11:00am until 10:00pm, but is located on the same parcel as a donut shop, which operates from 4:00am until 10:00am. There are unique conditions that allow for the sharing of parking between the uses which may justify the granting of the Variance.
Alternatively, rather than requesting a deviation from the parking standards, the applicant is requesting to construct a restaurant on a residentially zoned parcel which does not permit restaurants. In this case, a Variance would not be an option to the applicant as Variances can only be applied to Development Standards, not permitted uses. In this case, the applicant may be directed to a more appropriate location that is zoned appropriately to allow for a restaurant, such as a nearby shopping center or vacant commercial parcel. In the event that the applicant does not want to consider other locations, the applicant would be required to submit for a Change of Zone (Rezone).
A Change of Zone is process by which an applicant may request that the Zoning for a property be changed. In some cases, the changing of a Zone may be relatively simple, such as changing from Commercial Neighborhood (CN) to Commercial General (CG), since both Zones are consistent with the Commercial (C) General Plan Land Use Designation. For applications changing from Residential Low Density (RL) to Industrial Light (IL), the process gets more complex. As previously noted, each Zone is consistent with a specific General Plan Land Use Designation. The RL Zone is consistent with the Low Density Residential (LDR) General Plan Land Use Designation, while the IL Zone is consistent with the Industrial (I) General Plan Land use Designation. State law requires that Zoning and General Plan Land Use Designations be consistent. As such, to change a property from a RL Zone to an IL Zone would require a General Plan Amendment in addition to the Change of Zone application. Generally speaking, staff requires that Change of Zone and General Plan Amendments be accompanied by a Development proposal to provide the Planning Commission and City Council a better understanding of the potential development that could be accommodated with the request.
All of these entitlements require an initial investment by the applicant including architectural, civil and technical documents before they are presented to the decision making body. As such, most Developers prefer to have a level of comfort that they have addressed all of the major issues/concerns of the City prior to engaging in the preparation of the technical documents. The City offers a pre-development application process that allows for an applicant to provide a high
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level conceptual plan prior to preparing detailed drawings and documents, to receive written feedback from staff on the issues, challenges, and viability of a project. The more detailed the plans and documents, the more specific and comprehensive the comments.
Developers then use this feedback to further develop their project prior to submitting it to the City for review and approval.
Timelines
One of the most frequent questions asked by Developers is “How long will the process take?” Unfortunately, the most common answer is “It depends.” All Development projects have their own unique issues and challenges, whether it be environmental (located on or near a fault line, have expansive soils, subject to liquefaction, sensitive biological resources, archeological or historical resources, tribal cultural resources, air quality issues, traffic or population inducing, etc.), physical (lack of infrastructure such as water, electricity, sewer, storm drain facilities, etc.), economic (construction of off-site improvements, securing funding for construction, etc.) or neighborhood or community opposition. While staff attempts to mitigate these issues, they still play an important role in the decision making process of the developer. In most cases, the timing is dependent on the developer’s due-diligence and responsiveness to staff feedback and comments.
Enforcement and Compliance
One of the primary strategic goals of the City Council is Economic Development. To encourage new development in the City, the City Council directed the City Manager to develop a robust Code Enforcement program. Code Enforcement's main goal is to protect the integrity of public health, safety and welfare.
Most properties within the City are developed and operated in conformance with the City’s General Plan, Municipal Code, and applicable state and local requirements. However, in some cases, property owners, tenants, business owners, property managers, etc. may not conform to these requirements and are subject to various corrective actions. These violations may be simple nuisances, such as yard or building maintenance, parking of inoperable vehicles or commercial vehicles where not permitted, or damaged signs or windows. However, they could also be significant health and safety violations, such as unmaintained green pools which become breeding grounds for mosquitoes, habitation of unsafe living quarters (such as hording, or buildings without adequate access to water or electricity). They can also be unpermitted land uses that have not received permits or approvals to operate in their current location.
Communities with deteriorating properties tend to see an increase in crime rates and a decrease in property values. Vacant buildings, garbage, ill-cared for lawns, and deteriorating residences contribute to poor community conditions, directly effecting a business’ decision to establish a location within the City.
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Code Enforcement plays a crucial role in daily community operations and quality of life. Their duties have a direct impact on property values and community image. It is inevitable that a property will age with the progression of time.
Studies reveal that communities with poor conditions tend to attract more crime. With increased crime rates, community members usually face a drop in property values, resulting in difficulty selling their home, and getting their desired profit from the sale of the home. In addition to deterring crime and maintaining (or in some cases increasing property values), code enforcement officials also maintain the safety and well-being of the community by ensuring the maintenance of habitable property conditions. Properties with hoarding, fire code violations, and unsanitary living conditions can put the health and lives of residents at risk. Enforcing ordinances such as building codes, and general property standards is crucial and lifesaving.
The purpose of Code Enforcement is to gain voluntary compliance through education and public outreach. For most code violations in the City, a Code Enforcement Officer will issue a Courtesy Notice or a Notice of Violation, which identifies the nature of the violation and provides a compliance date. On or after the compliance date, the Code Enforcement Officer will do a reinspection of the site, and if the violation was addressed or abated by the owner, then the Code Enforcement Case is closed and no further action is taken. In the event the violation remains after the compliance date, the Code Enforcement Officer may issue an Administrative Citation, which identifies a citation and fine (typically $100 per violation for the first Citation) with an additional compliance date. Properties that remain out of compliance for an extended period of time may be cited and fined up to $500 per day per violation until the violations are addressed.
While citations do happen, the goal of the Code Enforcement Officer is to gain voluntary compliance after the first contact without resorting to fines, citation, or other remedies. To assist in obtaining compliance, the Code Enforcement Officers utilize the following tools:
• Educational Material
• Brochures
• Verbal Warnings
• Stickers
• Courtesy Notices
• Notice of Violations
• Citations
• Substandard Notices
• Inspection Warrants
• Abatement Warrants
• Receivership
• Condemnation
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In addition, property owners who demonstrate working toward compliance may request, and are often granted, extensions to allow for additional time to fully comply without needing to elevate to the next enforcement tool.
However, occasionally the Code Enforcement Division receives requests for extensions, and although they are granted, the property owner makes little to no effort to address the violations.
The lack of effort and responsiveness from the Property Owner reduces the opportunity to provide extensions in the future.
In the rare event that a Citation and Fine is issued, the Property Owner has the legal right to appeal the decision to the Community Preservation Committee within 15 days of receiving the fine. The appeal requires the pre-payment of the fine amount before it is scheduled. If the appeal is successful, the fine payment is refunded to the property owner. There is no additional cost (except the pre-payment of the fine) to the Property Owner to request an appeal hearing.
FISCAL IMPACT:
There is no fiscal impact to receive this report.
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March 21, 2023
TO: City Council
REQUESTED BY: Michael Maurer, City Attorney
APPROVED BY: Robert A. Johnson, City Manager
SUBJECT: Resolution No. 3968, Adopting the City of San Jacinto Rules of Decorum Policy
RECOMMENDATION:
Staff recommends that the City Council approve Resolution No. 3968:
· A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO,
CALIFORNIA, ADOPTING THE CITY OF SAN JACINTO RULES OF
DECORUM POLICY
DISCUSSION:
The City Council recognizes a need to establish rules of decorum that will promote a higher degree of efficiency in the performance of its duties, while ensuring the free exchange of information and public debate at City Council meetings.
The purpose of the City of San Jacinto Rules of Decorum Policy (the “Policy”) is to promote mutual respect, civility, and orderly conduct among elected and appointed City officials, City staff, and members of the public and to promote and maintain the highest standards of personal and professional conduct in the City's governance. While recognizing there are differing opinions and styles, and disagreement is sometimes a part of the public process, the City Council acknowledges and values its duty to model ethical and civil behavior for City staff and members of the public.
The Policy includes, among other things, general standards of conduct at public meetings, the role of the presiding officer at public meetings, rules of decorum for Councilmembers at public meetings and while in office, and remedial actions for violation of the Policy.
The Policy applies to the City Council and any other affiliated entity (now or later established) comprised, in whole or in part, by a majority of the City Council. The Policy also applies to any commission, committee, or board of the City.
The Policy shall be in addition to the procedures for decorum and order during public meetings in the previously adopted City of San Jacinto City Council Orientation & Procedures Handbook (the “Procedures Handbook”).
FISCAL IMPACT:
There is no fiscal impact for this item.
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ATTACHMENTS:
Resolution No. 3968
City of San Jacinto Rules of Decorum Policy
ATTACHMENTS:
Resolution No. 3968 - Decorum Policy
City of San Jacinto Decorum Policy 2023
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Resolution No. 3968
STATE OF CALIFORNIA) RESOLUTION NO. 3968
COUNTY OF RIVERSIDE)ss
CITY OF SAN JACINTO)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SAN JACINTO, CALIFORNIA, ADOPTING THE CITY OF
SAN JACINTO RULES OF DECORUM POLICY
WHEREAS, the City Council recognizes a need to establish rules of decorum that will promote a higher degree of efficiency in the performance of its duties, while ensuring the free exchange of information and public debate at City Council meetings.
WHEREAS, the City of San Jacinto (“City”) has prepared the City of San Jacinto Rules of Decorum Policy (“Decorum Policy”), attached hereto as Exhibit “A.” WHEREAS, the City desires to adopt the Decorum Policy to promote mutual respect, civility, and orderly conduct among elected and appointed City officials, City staff, and members of the public and to promote and maintain the highest standards of personal and professional conduct in the City's governance..
NOW, THEREFORE, the City Council of the City of San Jacinto hereby finds, determines, and resolves as follows:
SECTION 1. The recitals set forth above are true and correct and are incorporated into this resolution by this reference.
SECTION 2. The City hereby adopts the City of San Jacinto Rules of Decorum Policy, attached hereto as Exhibit “A.”
SECTION 3. This Resolution shall be effective as of the date of adoption. The Clerk shall certify the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 21st day of March, 2023, by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
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CITY OF SAN JACINTO:
________________________
Alonso Ledezma, Mayor
ATTEST:
_________________________
Julia Espinoza, City Clerk
APPROVED AS TO FORM:
BEST, BEST & KRIEGER LLP
____________________________
Michael J. Maurer, City Attorney
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CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE) ss
CITY OF SAN JACINTO)
I, Julia Espinoza, City Clerk of the City of San Jacinto , DO HEREBY CERTIFY that the foregoing Resolution No. 3968 was passed, approved, and adopted the Regular Meeting of the San Jacinto City Council held on the 21st day of March, 2023, by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
WITNESS MY HAND AND OFFICIAL SEAL this 21st day of March, 2023 _____________________________
Julia Espinoza, City Clerk
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EXHIBIT “A”
CITY OF SAN JACINTO RULES OF DECORUM POLICY
[attached behind this page]
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CITY OF SAN JACINTO RULES OF DECORUM POLICY
1 CITY OF SAN JACINTO RULES OF DECORUM POLICY
PURPOSE
The purpose of this City of San Jacinto Rules of Decorum Policy (the “Policy”) is to promote mutual respect, civility, and orderly conduct among elected and appointed City officials, City staff, and members of the public and to promote and maintain the highest standards of personal and professional conduct in the City's governance. While recognizing there are differing opinions and styles, and disagreement is sometimes a part of the public process, the City Council acknowledges and values its duty to model ethical and civil behavior for City staff and members of the public. City Council decisions and work, therefore, must meet the most demanding ethical standards and demonstrate the highest levels of achievement in following this Policy.
SCOPE
This Policy applies to the City Council and any other affiliated entity (now or later established) comprised, in whole or in part, by a majority of the City Council. This Policy also applies to any commission, committee, or board of the City. This Policy shall be in addition to the procedures for decorum and order during public meetings in the City of San Jacinto City Council Orientation & Procedures Handbook (the “Procedures Handbook”).
RULES OF DECORUM
1. General Standards of Conduct at Public Meetings.
The City holds numerous public meetings, such as meetings of the City Council and City commissions, boards and committees (hereinafter "Public Meetings"). In order to safeguard participatory democracy in San Jacinto, all City elected officials, appointed officials and employees, along with members of the public, are expected to adhere to the following standards of conduct:
Treat everyone courteously;
Listen to others respectfully;
Exercise self-control and avoid threats of violence and loud, insulting, demeaning, or offensive communications;
Give open-minded consideration to all viewpoints;
Focus on the issues and avoid personalizing debate; and Embrace respectful disagreement and dissent as democratic rights that are inherent components of an inclusive public process and tools for forging sound decisions and allow all members of the public to speak without intimidation or interruption.
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CITY OF SAN JACINTO RULES OF DECORUM POLICY
2 2. Presiding Officer at Public Meetings.
(a) The Mayor of the City Council shall be the Presiding Officer at all meetings of the City Council. In the absence of the Mayor, the Mayor Pro Tem shall preside. In the absence of both the Mayor and Mayor Pro Tem, the City Council shall select a temporary Presiding Officer to serve until the arrival of the Mayor or the Mayor Pro Tem or until adjournment, whichever first occurs. The Presiding Officer shall, among other things, do the following:
Maintain order and decorum at all City Council meetings. State (or cause to be stated) each question coming before the City Council. Determine all points of order subject to the right of any Councilmember to appeal to the City Council.
Announce the decisions of the City Council on all subjects. Enforce the provisions of this Policy.
(b) The Presiding Officer shall refer to “Rosenberg’s Rules of Order” to decide all questions of interpretation of these rules, points of order or other questions of procedure requiring rulings. Any such decision or ruling shall be final unless overridden or suspended by majority vote of the Councilmembers present and voting.
3. Rules of Decorum For Councilmembers at Public Meetings. (a) Councilmembers shall preserve order and decorum. No Councilmember shall delay or interrupt the proceedings of the City Council or disturb any member of the public while he or she is properly recognized and addressing the City Council. (b) Councilmembers shall treat everyone with respect by actively listening to other viewpoints, and not interrupting, ignoring, or belittling the contributions of others.
Councilmembers will use professional language.
(c) Councilmembers shall not engage in any abusive or vulgar language and shall avoid personal attacks on any other member of the City Council, City staff or the public; nor shall they publicly impugn the integrity or honesty of such individuals. (d) Councilmembers desiring to speak shall address the Presiding Officer and, upon recognition by the Presiding Officer, shall confine themselves to the question under debate. (e) Once recognized by the Presiding Officer, a Councilmember shall not be interrupted when speaking unless called to order by the Presiding Officer, unless a point of order or personal privilege is raised by another Councilmember, or unless the speaker chooses to yield to questions from another Councilmember.
(f) If a Councilmember is called to order, that Councilmember shall cease speaking immediately until the question of order is determined. If ruled to be in order, he or she shall be
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CITY OF SAN JACINTO RULES OF DECORUM POLICY
3 permitted to proceed. If ruled to be not in order, he or she shall remain silent or shall alter his or her remarks so as to comply with the rules of the City Council. (g) Councilmembers desiring to question City staff shall address their question to the City Manager or City Attorney, in appropriate cases, who shall be entitled either to answer the inquiry themselves or designate some member of City staff for that purpose. (h) Discussion by Councilmembers must relate to the subject matter at hand and shall be relevant and pertinent to allow for the expeditious disposition and resolution of the business before the City Council.
(i) Councilmembers shall make impartial decisions in the best interest of the City, free of narrow political interests, financial, and other personal interests that impair independence of judgment or action, and are consistent with, but not limited to, the requirements of the Political Reform Act and other State and local laws.
(j) Councilmembers must allow for adequate discussion of the minority point of view. Councilmembers shall recognize and accept legitimate differences of opinion.
Councilmembers shall act with integrity in accepting, supporting, and defending the City Council. Once the City Council takes action, Councilmembers should commit to supporting said action and not create barriers to the implementation of said action. (k) Councilmembers shall respect confidences and information designated as "confidential" and not disclose information received during any Closed Session of the City Council held pursuant to State law.
(l) Any Councilmember may move to require the Presiding Officer to enforce the rules of decorum and order, and the affirmative vote of a majority of the City Council shall require the Presiding Officer to do so.
4. Rules of Decorum For Councilmembers While in Office.
Councilmembers have a duty to:
(a) Prepare for meetings by understanding the background, purpose, and arguments for and against items of business before a meeting.
(b) Seek background information about agenda items and operational matters by contacting the City Manager and provide adequate notice of issues that arise before meetings, including, but not limited to, a potential conflict of interest with an agenda item. (c) Avoid making individual pronouncements and public conjectures outside of City Council meetings about the City on matters not yet decided by the City Council. (d) Abide by and defend all applicable laws and policies, especially the political campaign, lobbying, and conflict of interest laws enforced by the Fair Political Practices Commission, State laws, and the Procedures Handbook.
4.4.b
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CITY OF SAN JACINTO RULES OF DECORUM POLICY
4 (e) Safeguard the ability to make independent, objective, fair and impartial judgments by scrupulously avoiding financial and social relationships and transactions that may compromise, or give the appearance of compromising, objectivity, independence, and honesty. (f) Carefully consider if exceeding or appearing to exceed authority of office for personal or financial gain. When in doubt, avoid actions that create, in the mind of a reasonable observer, the appearance of impropriety, ethical lapses, legal violations, or actions inconsistent with this Policy.
(g) Deter rumors and misunderstandings by making factual information available, answering questions directly, telling the truth, and admitting to a lack of knowledge if necessary. (h) Refrain from making unauthorized commitments or promises of any kind purporting to bind the City. Refrain from any gratuitous comments that may harm the City's position in litigation or potential litigation.
(i) Refer citizen complaints to the City Manager.
(j) Refrain from using status as a public office holder to influence the outcome of a community meeting or purport to represent the City Council as a whole unless otherwise authorized to by the majority of the City Council. Remain a neutral observer, indicating when expressing personal opinions, and referring questions related to City policies to the City Manager.
(k) Refrain from contacting City staff directly, questions to City staff should be channeled through the City Manager so that appropriate lines of communication are open and effectively utilized.
(l) Utilize City resources, including but not limited to, equipment, supplies, staff time, telephones, and computers in a manner consistent with City policies, the Political Reform Act, and State laws.
VIOLATIONS OF POLICY
1. Presiding Officer.
The Presiding Officer shall request that a Councilmember who is breaching the rules of decorum be orderly and comply with this Policy. If after receiving a warning from the Presiding Officer the Councilmember fails to comply with this Policy, the Presiding Officer may agendize an item for the next meeting of the City Council to discuss the conduct and have the City Council determine if the conduct is in violation of this Policy. If a majority of the City Council by affirmative vote determines the conduct was in violation of this Policy, the majority of the City Council may impose by affirmative vote any of the following remedial actions:
Issue a letter of warning from the City Council;
Adopt a resolution expressing disapproval of the conduct of the Councilmember and censure by the City Council;
4.4.b
Packet Pg. 348 Attachment: City of San Jacinto Decorum Policy 2023 (Resolution No. 3968, Adopting the City of San Jacinto Rules of Decorum Policy)
CITY OF SAN JACINTO RULES OF DECORUM POLICY
5 Remove the Councilmember from their position on City committees or revoke their appointment to other agency committees; or
Remove the Councilmember from their position as Mayor or Mayor Pro Tem, as applicable, and select a successor to such office pursuant to the selection procedure established in the Procedures Handbook.
2. Motion to Enforce.
If the Presiding Officer fails to enforce the rules set forth above, any Councilmember may move the City Council to require the Presiding Officer to do so, and an affirmative vote of a majority of the City Council shall require him or her to do so. If the Presiding Officer of the City Council fails to carry out the will of a majority of the City Council, the majority of the City Council may designate another member of the City Council to act as Presiding Officer for the limited purpose of enforcing any rule of this Policy which it wishes enforced.
4.4.b
Packet Pg. 349 Attachment: City of San Jacinto Decorum Policy 2023 (Resolution No. 3968, Adopting the City of San Jacinto Rules of Decorum Policy) March 21, 2023
TO: City Council
REQUESTED BY: Tara Magner, Executive Coordinator
APPROVED BY: Robert A. Johnson, City Manager
SUBJECT: International Council of Shopping Centers RECON 2023 RECOMMENDATION:
Staff recommends that the City Council authorize travel requests for up to two City Councilmembers to attend the International Council of Shopping Centers (ICSC) RECON, Las Vegas, on May 21-23, 2023.
DISCUSSION:
Founded in 1957, the International Council of Shopping Centers (ICSC) is the leading shopping center industry trade association with over 70,000 members located throughout 100 countries.
ICSC RECON is a global convention, which will be held May 21-23, 2023 in Las Vegas. With approximately 40,000 attendees and over 1,000 exhibitors, it is the largest gathering of retail estate professionals.
Approximately 50 percent of all retail deals are concluded at the annual ICSC RECON event held each May. Consequently, the annual meetings in May in Las Vegas, the October Western Division Conference in San Diego, and the March Monterey Idea Exchange events are essential to keep San Jacinto fresh in the minds of retailers and developers as new locations are considered.
Ongoing efforts at these ICSC events have resulted in the attraction of the Habit Burger, Tommy’s Car Wash, Dutch Bros Coffee, Popeye’s Louisiana Chicken, Jersey Mike’s, Dollar Tree, Quick Quack Car Wash, Circle K, Grocery Outlet, and on-going tenant interest and development for seven active commercial project locations in San Jacinto.
In addition, staff has been able to meet with multiple developers regarding various development locations throughout the City of San Jacinto. With ongoing and active commercial activity and the increased residential construction, this has generated increased interest by retail developers and brokers looking for sites along San Jacinto’s main corridors. In order to accommodate the anticipated meeting schedule and to continue to enhance the City’s visibility, the City will have its own booth to host developers and provide maximum exposure to San Jacinto.
In 2022, City staff was able to conduct over 40 meetings with potential developers and retailers throughout the three-day conference. With meetings held in the City’s booth, San Jacinto attracted attention from additional interested retail and residential developers and others enjoying the conference who were just walking past.
Councilmembers routinely accompany staff at the annual ICSC RECON event and are teamed with staff to handle individual and group meetings. The team effort establishes, builds, cements,
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and maintains relationships with shopping center developers, retail tenants, and their representatives, to show how engaged the city staff and elected officials are in obtaining new retailers.
The travel requests are being submitted now for City Council consideration in order to take advantage of advance booth rates.
FISCAL IMPACT:
The estimated cost for each Councilmember to attend is $2,000. This includes the ICSC membership, food and travel related expenses. Conference registration costs are included in the City’s booth registration; therefore individual registration costs are not required. Funds are available in the FY 2022-2023 Budget, Account #010-1100-411-3120 (Conference and Seminars).
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