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1.7 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1.8 Additional Services.
City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty (180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other Consultants. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
1.9 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed __________________________________ Dollars ($______) (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.8.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Consultant’s rates as
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specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance.
By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall contain all information specified in Exhibit “C”, and shall detail charges for all necessary and actual expenses by the following categories:
labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Subcontractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person.
City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within forty-five (45) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
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3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit “D”). [The City may, in its sole discretion, extend the Term for additional one-year terms.]
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ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be [_____________________________] or such person as may be designated by the City Manager. It shall be the Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless
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otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. Consultant represents and warrants that the personnel used to provide services to the City pursuant to this Agreement are classified by Consultant as employees and that Consultant issues or will issue a W-2 to such personnel.
In the event that Consultant or any employee, agent, subcontractor, or independent contractor of Consultant providing services under this Agreement claims or is determined by a federal or state agency, a court of competent jurisdiction, or the California Public Employees’ Retirement System (“CalPERS”) to be classified as other than an independent contractor for the City, then Consultant shall indemnify, defend, and hold harmless the City for the payment of any and all assessed fines, penalties, judgments, employee and/or employer contributions, and any other damages and costs assessed to the City as a consequence of, or in any way attributable to, the assertion that Consultant or any of Consultant’s personnel used to provide the Services under this Agreement are other than independent contractors of the City.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
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ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
Without limiting Consultant’s indemnification of City, and prior to commencement of any services under this Agreement, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.
(a) General liability insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(b) Automobile liability insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (c) Professional liability (errors & omissions) insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement. (d) Workers’ compensation insurance. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor.
All coverages for subcontractors shall include all of the requirements stated herein. (f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.
5.2 General Insurance Requirements.
(a) Proof of insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
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(b) Duration of coverage. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants.
(c) Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (e) Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
(f) Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (g) Enforcement of contract provisions (non-estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of noncompliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant.
Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
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(i) Notice of cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. (j) Additional insured status. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
(k) Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (l) Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. (n) Agency’s right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant’s compensation.
(o) Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely notice of claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. (q) Additional insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
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5.3 Indemnification.
To the full extent permitted by law, Consultant agrees to indemnify, defend and hold harmless the City, its officers, employees and agents (“Indemnified Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys’ fees.
Consultant shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination or expiration of this Agreement.
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ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, reuse or assignment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting
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therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
(b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement.
Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena.
(c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. (d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under.
City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant.
However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, State of California.
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7.2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default.
This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
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7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Liquidated Damages.
Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of $_________ (___________________________ Dollars) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit “D”). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. Pursuant to Government Code Section 4215, Contractor shall not be assessed liquidated damages for delay in completion of the project when such delay was caused by the failure of the public agency or owner of the utility to provide for removal or relocation of utility facilities.
7.8 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Consultant reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the
01257.0001/867754.1 27
compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
7.10 Attorneys’ Fees.
If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees. Attorney’s fees shall include attorney’s fees on any appeal, and in addition a party entitled to attorney’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and
01257.0001/867754.1 28
that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of South El Monte, 1415 Santa Anita Avenue, South El Monte, California 91733 and in the case of the Consultant, to the person(s) at the address designated on the execution page of this Agreement.
Either party may change its address by notifying the other party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
01257.0001/867754.1 29
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty & Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include interests found to be “remote” or “non-interests” pursuant to Government Code Sections 1091 or 1091.5. Consultant warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement.
Consultant further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Consultant is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
Consultant’s Authorized Initials _______
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]
01257.0001/867754.1 30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF SOUTH EL MONTE, a municipal corporation
Gloria Olmos, Mayor
ATTEST:
Donna G. Schwartz, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Anthony R. Taylor, City Attorney
CONSULTANT:
_______________________________________
By:
Name:
Title:
By:
Name:
Title:
Address: ____
If applicable, two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT’S
SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
01257.0001/867754.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2024 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
I. Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
01257.0001/867754.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2024 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
II. Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
__________________________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
01257.0001/867754.1 A-1
EXHIBIT “A”
SCOPE OF SERVICES
III. Consultant will perform the following Services:
A.
B.
C.
IV. As part of the Services, Consultant will prepare and deliver the following tangible work products to the City:
A.
B.
C.
V. In addition to the requirements of Section 6.2, during performance of the Services, Consultant will keep the City appraised of the status of performance by delivering the following status reports:
A.
B.
C.
VI. All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City.
VII. Consultant will utilize the following personnel to accomplish the Services:
A.
B.
C.
01257.0001/867754.1 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
The Agreement is amended as provided herein. Deleted text is indicated in strikethrough and added text in bold italics.
01257.0001/867754.1 C-1
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks at the following rates:
RATE TIME SUB-BUDGET
A. __________ __________ __________ __________
B. __________ __________ __________ __________
C. __________ __________ __________ __________
D. __________ __________ __________ __________
II. A retention of ten percent (10%) shall be held from each payment as a contract retention to be paid as part of the final payment upon satisfactory completion of services.
III. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task subbudget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.
IV. The City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services.
V. The total compensation for the Services shall not exceed the Contract Sum as provided in Section 2.1 of this Agreement.
VI. The Consultant’s billing rates for all personnel are attached as Exhibit C-1.
01257.0001/867754.1 C-2
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services timely in accordance with the following schedule:
Days to Perform Deadline Date
A. Task A ______________ ______________
B. Task B ______________ ______________
C. Task C ______________ ______________
II. Consultant shall deliver the following tangible work products to the City by the following dates.
A.
B.
C.
III. The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2.
City Council Agenda Report
Agenda Item No. 9.b.
DATE: February 13, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Ariana De La Cruz, Director of Community Services SUBJECT: CONSIDERATION AND APPROVAL OF THE 2024 NIGHT
MARKETS, SUMMER CONCERT SERIES AND FOURTH OF
JULY CELEBRATION CONCERT BAND PERFORMANCES
SUMMARY: Staff is requesting the approval for the 2024 Night Markets (4), Summer Concert Series (6), and the Fourth of July Celebration band performances.
RECOMMENDED ACTION:
Staff recommend City Council consider and approve the 2024 Night Markets (4), Summer Concert Series (6), and the Fourth of July Celebration band performances.
FISCAL/FINANCIAL IMPACT: The 2024 scheduled Night Markets include two (2) markets, on April 4, 2024, and May 2, 2024, approved in the Fiscal Year (FY) 2023-24 special events budget and the remaining two (2) markets scheduled on September 5, 2024, and October 3, 2024, will be proposed in FY 2024-25 budget deliberations.
The 2024 Summer Concert Series includes two (2) concerts, on June 13, 2024, and June 27, 2024, approved in the Fiscal Year (FY) 23-24 summer concerts budget and the remaining four (4) concerts scheduled on July 11, 2024, July 25, 2024, August 8, 2024, and August 22, 2024, will be proposed in FY 24-25 budget deliberations.
The 2024 Fourth of July Celebration scheduled on July 4, 2024, will be proposed in FY 24-25 budget deliberations.
Hosting a band performance at a City event averages between $1,600.00 to $2,000.00 for a 2-hour performance including the performer’s PA system.
DISCUSSION: At the November 14, 2023 City Council Meeting, the City Council approved the City's 2024 Special Events Calendar which includes four (4) Night Markets, six (6) Summer Concerts, and the Fourth of July Celebration. The events are scheduled to feature a live 2-hour band performance in each respective event.
The live entertainment featured at these events encourages the public to bring out their
lawn chairs to enjoy music or dance the night away and celebrate community, music, and the vibrant spirit that defines South El Monte in a safe and family friendly environment.
In efforts to engage the community, staff conducted a survey on the City's social media accounts requesting band recommendations for the City's upcoming events. The survey results have been listed and detailed in order based on the highest level of popularity in Attachment A, 2024 City Concerts Survey Results.
Furthermore, staff compiled the survey results into a recommended list for the 2024 events referenced as Attachment B, 2024 City Event Band Recommendation. In order to ensure the performer's availability, staff is seeking City Council's direction and approval from either the staff's recommended band list or the survey results list to proceed with scheduling accordingly.
ATTACHMENT(S):
A. Attachment A - 2024 City Event Concert Survey Results B. Attachment B - 2024 City Event Band Recommendation
Attachment A
2024 City Event Concert Survey Results
Band Name Genre Price Survey Source
The New
Beginning Band
Oldies, Cumbias,
Ballads, R&B, Rock N’
Roll, Country, Salsa,
and Top 40.
$1,500.00 for 2 hr set Facebook: Direct message
from band;
Top Facebook and
Instagram
recommendation
The Platinum Beat Top 40, Latin Rock, Pop
90’s
$1,600.00 for 2 hr set Top Instrgram: Direct
message from band
Soto Latin, Funk, R&B, and
Dance
$2,000.00 for 2 hr set Top Facebook and
Instagram
recommendation; has
performed in the past.
Suave Jazz, Rock, Swing,
R&B, Cumbia,
Merengue, Salsa, and
ChaCha.
$1,700.00 for 2 hr set Top Facebook and
Instagram
recommendation; has
performed in the past.
Cold Duck Latin Jazz Cover Bands $1,800.00 for 2 hr set Facebook: Direct message from band; has performed
in concert
Ace Band Pop Rock, R&B, 80’s
Dance
$1,700.00 for 2 hr set Facebook: Direct message
from band; has performed
in concert
Chico Band Latin, Oldies, Latin
Rock, Cumbias
$ 1,700.00 for 2 hr set Facebook: Direct message
from band; has performed
in concert
Versatil Melodia Cumbias, Latin Rock,
Latin top 40’s
$2,300.00 for 2 hr set Facebook: Direct message
from band; has performed
in concert
The Impulse Band 70’s and 80’s Dance,
top 40, R&B, Old
School, Latin, and
Classic Rock
$1,000.00 for 2 hr set Facebook: Direct message
from band.
Used in 1st night market in
2023.
TIERRA – The
Legacy Continues
Latin, Rock, Pop, Jazz,
R&B, and Salsa
$4,000.00 for 1.5 hr set Facebook and Instagram
recommendation; has
performed in the past.
Pulp Vixen –
Female Fueled
Music
Rock, Top 40, Dance,
Latin, and 80’s
$1,600.00 for 2 hr set Facebook and Instagram
recommendation
Bump Town Band Latin, Rock, Pop, Jazz,
R&B, and Salsa.
$1,600.00 for 2 hr set Reached out to City Staff
The Jolly Corks Multi Decade Tribute
Band
the 60s, 70s, 80s 90s
and 2000s
1,300.00 for 2 hr set Reached out to City Staff
Area80’s 80’s Cover Band- Retro
Nu-wave 80s
$1,300.00 for 2 hr set Reached out to City Staff
Attachment A
Taken Cover Act a Multi-Decade Duo
show Cover hits from
the 60s to Current
$1,300.00 for 2 hour set Reached out to City Staff
Luis Cruz Beltran Latin jazz and classic
R&B
$2,400.00 for 2 hour set Reached out to City Staff
Attachment B
2024 City Event Band Recommendation
Event Date Recommended Band
April Night Market Thursday, April 4, 2024 Impulse Band May Night Market Thursday, May 2, 2024 Melodia Verstail 1 st Summer Concert Thursday, June 13, 2024 Cold Duck
2 nd Summer Concert Thursday, June 27, 2024 Chico Band
Fourth of July Celebration Thursday, July 4, 2024 The Platinum Beat 3 rd Summer Concert Thursday, July 11, 2024 Suave
4 th Summer Concert Thursday, July 25,2024 Chico
5 th Summer Concert Thursday, August 8, 2024 Ace Band
6 th Summer Concert Thursday, August 22, 2024 Soto
September Night Market Thursday, September 5,
2024
The New Beginning Band
October Night Market Thursday, October 3, 2023 Bump Town Band
City Council Agenda Report
Agenda Item No. 9.c.
DATE: February 13, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Anthony Taylor, City Attorney
SUBJECT: CONSIDERATION TO RECEIVE AND FILE 2023–2024
CALIFORNIA LEGISLATION UPDATE
SUMMARY: Staff is requesting City Council receive and file this 2023–24 California Legislation Update and discuss any questions with staff and the City Attorney’s Office.
RECOMMENDED ACTION: Staff recommends City Council receive and file this report and presentation.
FISCAL/FINANCIAL IMPACT: There will be no fiscal impact to the City at this time.
DISCUSSION: In October 2022 and 2023, Governor Newsom signed into law several bills impacting local government agencies. SB 1439 became effective on January 1, 2023, while the AB 557, AB 63, and SB 678 became effective on January 1, 2024. The subject matter of these laws vary from campaign contributions and elections to remote meetings. For simplicity, this report breaks down each bill by category and provides a brief synopsis of each bill.
AB 557: Remote Meetings (Teleconference)
• Indefinitely extends emergency remote meeting procedures used during the COVID-19 pandemic under the Brown Act
• Allows teleconferencing when (1) the legislative body meets for the purpose of determining whether, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees, or (2) has previously made that determination
• Extends the period for a legislative body to make such findings related to a continuing state of emergency to no later than 45 days after the first teleconferenced meeting, and every 45 days thereafter, in order to continue to meet under the revised Brown Act procedures
• Effective January 1, 2026, rescinds the ability of a member of a legislative body to join public meetings remotely due to “emergency circumstances” or “just cause” pursuant to AB 2449
AB 63: Canvass of the Vote (Reporting Results)
• Requires the elections official, beginning no later than the Thursday following the election until submission of a certified statement of results, to post updated information regarding the election on their internet website at least once per week • Requires the Secretary of State to notify either the State Assembly or State Senate if any legislative candidate who won their race was not continuously registered to vote in the district that they ran to represent
SB 678: Elections (Disclosures)
• Requires a person who is paid by a committee to support or oppose a candidate or ballot measure on an internet website, web application, or digital application, to include a disclaimer (if not already required) stating that they were paid by the committee in connection with the post
• Failure to post the disclaimer authorizes the Fair Political Practices Commission to seek injunctive relief to compel disclosure
• Exempts the disclaimer requirement for content posted by a compensated employee of a committee on the employee’s own social media page or account if the only expense or cost of the communication is compensated staff time, unless the person’s principal duties as an employee are to post content on the person’s own social media page or account
SB 1439: Campaign Contributions (Agency Officers)
• Extends the Levine Act’s (Govt. Code section 84308) requirements to local elected officials
• Requires local elected officials (including members of city council, special district boards, and school district boards) to recuse from (i.e., “conflict out”) certain proceedings involving their campaign contributors and to, further, make certain disclosures of such contributors
• Prevents local elected officials from accepting, soliciting, or directing campaign contributions greater than $250 from a party or participant in any proceeding (including their agents) while the proceeding is pending and, further, for the 12 months after a final decision in proceeding
• In order to implement SB 1439, the Fair Political Practices Commission (“FPPC”) recently adopted regulations (some new and some amended). These regulations help clarify how SB 1439 would apply to local elected officials, including the related
complexities. The following are some brief highlights of the guidance provided by the regulations:
o Pre-January 1, 2023, Contributions and Proceedings. SB 1439 does not apply to contributions made or received and proceedings participated in by local elected officers that occurred prior to January 1, 2023. (New FPPC Regulation 18438.) This codifies their Kendrick Opinion (No. O-22-002) from last year
o Officer of an Agency. Clarified the definition of an “officer” under SB 1439 so that it also applies to an officer who has already lost an election. (Amended FPPC Regulation 18438.1(d)(4))
o Agent. An “agent” is someone who represents a “… party or participant for compensation and appears before or otherwise communicates with the governmental agency for the purpose of influencing the pending proceeding.” (Amended FPPC Regulation 18438.3(a))
o Pending Proceeding.Under Amended FPPC Regulation 18438.2(b), a proceeding involving a license, permit, or other entitlement is considered “pending” in the following circumstances:
▪ For an officer, a proceeding involving a license, permit, or other entitlement for use is pending (1) when the decision is before the officer for their consideration. If the officer is a member of a governing body, this includes any item placed on the agenda for discussion or decision at the body’s public meeting; or (2) when the officer knows or has reason to know a proceeding involving a license, permit or other entitlement for use is before the jurisdiction of the agency for its decision or other action, and it is reasonably foreseeable the decision will come before the officer in the officer’s decision making capacity
▪ For a party or party’s agent, or a participant or participant’s agent, a proceeding involving a license, permit or other entitlement for use is pending when it is before the jurisdiction of the agency for its decision or other action
• This is only a brief snapshot of the FPPC’s new and amended regulations implementing SB 1439 in order to provide a general illustration of what has changed. The new and amended regulations are fairly extensive, nuanced, and complex, and will require analysis in the context of specific situations as they arise.
This includes requirements for disclosure of contributions as they arise. As such, we recommend that you seek further guidance from your attorney as matters arise • The FPPC’s guidance materials on the Levine Act were issued in October 2023— reflecting the complexity of and ongoing questions regarding the application of the Levine Act
ATTACHMENT(S):
A. (SEM) New Laws Memo to City Council (2024)(955372.2) B. Copy of Bills
C. (SEM) FPPC Guidance on the Levine Act(958379.1)
ATTACHMENT A
01257.0001/955372.2 Page 1 of 2
CITY OF SOUTH EL MONTE
1415 SANTA ANITA AVENUE
SOUTH EL MONTE, CALIFORNIA 91733
(626) 579-6540
-
MEMO
City Clerk’s Office
DATE: February 13, 2024
TO: Honorable Mayor and City Council
Rene Salas, City Manager
SUBJECT: Summary of New Legislation for 2024
FROM: Donna G. Schwartz, City Clerk
The below is a summary of new legislation taking effect in 2024, more information will be provided from the City Attorney by way of a staff report at a future meeting to discuss.
SB 1439 Campaign Contributions (Agency Officers - Amending California Government Code Section 84308): This bill, effective January 1, 2023, extends the Levine Act’s (Govt. Code section 84308) requirements to local elected officials. Overall, SB 1439 requires local elected officials (including members of city council, special district boards, and school district boards) to recuse from (i.e., “conflict out”) certain proceedings involving their campaign contributors and to, further, make certain disclosures of such contributors.
This bill also prevents local elected officials from accepting, soliciting, or directing campaign contributions greater than $250 from a party or participant in any proceeding (including their agents) while the proceeding is pending and, further, for the 12 months after a final decision in proceeding.
AB 557 Remote Meetings (Teleconference): This bill, effective January 1, 2024, indefinitely extends emergency remote meeting procedures used during the COVID-19 pandemic under the Brown Act. AB 557 builds on an earlier bill, AB 361, which allows local agencies to meet remotely during certain states of emergency using modified Brown Act meeting procedures. AB 361 was set to expire at the end of 2023; however, AB 557 strikes down this sunset provision.
Particularly, AB 557 permits teleconferencing when (1) the legislative body meets for the purpose of determining whether, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees, or (2) has previously made that determination.
AB 557 also extends the period for a legislative body to make such findings related to a continuing state of emergency to no later than 45 days after the first teleconferenced meeting,
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and every 45 days thereafter, in order to continue to meet under the revised Brown Act procedures.
Further, AB 557 eliminates explicit references to social distancing measures in Government Code section 54953 (e)(1)(A) and (e)(3), but all policies regarding states of emergency remain unchanged. Also, effective January 1, 2026, AB 557 rescinds the ability of a member of a legislative body to join public meetings remotely due to “emergency circumstances” or “just cause” pursuant to AB 2449.
AB 63 Canvass of the Vote (Reporting Results): This bill, effective January 1, 2024, requires the elections official, beginning no later than the Thursday following the election until submission of a certified statement of results, to post updated information regarding the election on their internet website at least once per week. Further, this bill requires the Secretary of State to notify the relevant house of the Legislature if any legislative candidate who won their race was not continuously registered to vote in the district that they ran to represent.
SB 678 Elections (Disclosures): This bill, effective January 1, 2024, requires individuals paid by a committee to support or oppose a candidate or ballot measure on internet websites, web applications, or digital applications to include a disclaimer stating that they were paid by the committee. Online political advertisement disclosures are already required, but only if a campaign committee posts the advertisement. This bill ensures that a committee cannot avoid disclosures simply by paying a third party to post content.
For further questions you may direct them to the City Attorney Anthony R. Taylor.
Copy of the Bills attached.
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FPPC Advice: [email protected] (866.275.3772)
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Fair Political Practices Commission
Senate Bill 1439
In 2022, the California Legislature passed SB 1439, a bill that amended Section 84308 of the Political Reform Act (“the Act”). The changes took effect on January 1, 2023. As detailed below, the amendments significantly broadened the scope of the statute—most significantly by applying the statute’s restrictions to agencies whose members are directly elected by voters. In response to the changes brought on by SB 1439, the FPPC: (1) issued the Kendrick Opinion on the application of amended Section 84308; (2) is preparing a package of regulatory amendments; and (3) is providing guidance in the form of this fact sheet1, as well as through formal advice letters and informal assistance via phone and email.
Section 84308 Generally
Section 84308 prohibits certain officials from taking part in an entitlement for use proceeding if the official has received a contribution exceeding $250 from a party or participant in the proceeding within the preceding 12 months. An official is also prohibited from accepting, soliciting, or directing a contribution exceeding $250 from a party or participant in the proceeding for a certain period of time after a final decision is rendered in such a proceeding.
A “party” is any person who files an application for, or is the subject of, a proceeding involving a license, permit, or other entitlement for use. A “participant” is person who is not a party but who actively supports or opposes a particular decision in a proceeding involving a license, permit, or other entitlement for use, and has a financial interest in the decision.
A party to a proceeding before an agency involving a license, permit, or other entitlement for use must disclose on the record any contribution in an amount of more than two hundred fifty dollars ($250) made within the preceding 12 months to an official of the agency.
1 This fact sheet is informational only and contains only highlights of selected provisions of the law.
It does not carry the weight of the law. For further information, consult the Political Reform Act and its corresponding regulations, advice letters, and opinions. 2023 Changes to
Section 84308
February 2023
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Fair Political Practices Commission
In certain instances, an official may avoid violating this section by returning contributions in excess of $250. (See subdivision (d).)
Changes in 2023
As of January 1, 2023, Section 84308 now operates differently in two key ways:
1. Section 84308 now applies to agencies whose members are directly elected by voters including local elected officials such as city councilmembers and county supervisors serving on their respective boards; and
2. Officials are prohibited from accepting, soliciting, or directing a contribution exceeding $250 from a party or participant for 12 months after the final decision of a proceeding.
Common Questions Regarding Section 84308
Q. What types of proceedings are covered by Section 84308? A. Section 84308 pertains to “proceeding[s] involving a license, permit, or other entitlement for use.” The phrase “license, permit, or other entitlement for use,” in turn, “means all business, trade, and land use licenses and permits and all other entitlements for use, all contracts (other than competitively bid, labor, or personal employment contracts), and all franchises.”
Q. Does an official have a duty to proactively determine whether a participant has a financial interest in a decision?
A. No. Section 84308 and Regulation 18438.7 require an official to recuse when the official knows or has reason to know of a participant’s financial interest in a proceeding, but neither the statute nor regulation establish a proactive duty to investigate a potential financial interest, such as reviewing other public records or questioning the individual.
Q. Do SB 1439’s amendments to Section 84308 apply to contributions received or proceedings participated in throughout 2022, before SB 1439 took effect?
A. The Commission has determined a local elected official is not prohibited from taking part in entitlement for use proceedings based on contributions received in 2022, nor is an official prohibited from accepting, soliciting, or directing contributions exceeding $250 from parties or participants in proceedings finalized in 2022. (See Kendrick Opinion, No. O-22-002.)
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Q. When will the Commission amend regulations relating to Section 84308? A. Pre-notice discussion of regulatory amendments is scheduled to occur at the Commission’s February 16, 2023 meeting, with presentation for adoption scheduled to occur at the Commission’s April 20, 2023 meeting. The Commission welcomes and encourages public comments regarding potential regulatory amendments. To find out how to participate in a FPPC meeting, go to https://www.fppc.ca.gov/about-fppc/contact-us/public-comment.html.
Fair Political Practices Commission 1 Parties, Participants, Agents, and Section 84308 October 2023
CONTENTS
Introduction.............................................................................................................................. 2 A. What is a “Proceeding Involving a License, Permit, or Other Entitlement for Use”? .. 3 B. Am I a “Party,” “Participant,” or “Agent”?...................................................................... 4
1. Parties...............................................................................................................................................................4
2. Participants .......................................................................................................................................................4
3. Agents...............................................................................................................................................................5 C. Who Qualifies as an “Officer of an Agency”?................................................................. 7 D. When is an Entitlement Proceeding “Pending”?............................................................ 8 E. How is the $250 Limit Calculated?................................................................................... 9 F. What Are My Responsibilities If I Have Made Greater Than $250 in Contributions Within the Past 12 Months? ...................................................................................................10
1. Prohibition on Further Contributions During a 12-Month Period......................................................................10
2. Disclosure .......................................................................................................................................................11 G. Frequently Asked Questions...........................................................................................12 Parties, Participants, Agents,
and Section 84308
October 2023
Fair Political Practices Commission 2 Parties, Participants, Agents, and Section 84308 October 2023
INTRODUCTION
Section 84308 is a California law aimed at preventing “pay-to-play practices,” in part, by prohibiting parties, participants, and their respective agents in a proceeding involving a license, permit, or other entitlement for use (collectively referenced as a “entitlement for use proceeding” or “proceeding”) from contributing more than $250 to an officer of the agency the proceeding is before during a 12-month period. The prohibition applies to any 12-month period while the proceeding is pending and for 12 months following the date a final decision is rendered in the proceeding.
Additionally, in an entitlement for use proceeding, a party—but not a participant— is required to disclose any contributions exceeding an aggregate $250 that the party and their agents have made to an officer of the agency within the preceding 12 months.
When it was first enacted in 1982, Section 84308 applied to appointed members of boards and commissions who were running for elective office. (Stats. 1982, ch. 1049 § 1 (“Levine Act”).) However, effective January 1, 2023, the Legislature expanded the scope of its prohibitions to apply to agencies whose members are directly elected by voters and extend the prohibitions from 3 months to 12 months after the final decision in a proceeding. (Stats. 2022, ch. 848 § 1 (“SB 1439”).)
The following is a step-by-step guide to help you determine:
· What is a “proceeding involving a license, permit, or other entitlement for use”?
· Am I a “party,” “participant,” or “agent”?
· Who qualifies as an “officer of an agency”?
· When is the proceeding “pending”?
· How is the $250 limit calculated?
Frequently Asked Questions are also addressed.
Fair Political Practices Commission 3 Parties, Participants, Agents, and Section 84308 October 2023
A. WHAT IS A “PROCEEDING INVOLVING A LICENSE,
PERMIT, OR OTHER ENTITLEMENT FOR USE”?
Section 84308 defines the term “license, permit, or other entitlement for use” to mean “all business, professional, trade, and land use licenses and permits and all other entitlements for use, including all entitlements for land use, all contracts (other than competitively bid, labor, or personal employment contracts), and all franchises.” The term “entitlement for use” is not defined by Section 84308.The overall scheme and purpose of Section 84308 suggests that the types of proceedings which should be covered by Section 84308 are those in which specific, identifiable persons are directly affected or in which there is a direct substantial financial impact upon the participants. The California courts have examined the term “entitlement for use” in other contexts. These decisions provide useful guidance; however, interpretation of the Act is not necessarily limited by interpretation of other laws. Below is a list of proceedings FPPC staff have previously advised are entitlement for use proceedings. (See, e.g., Velasquez Advice Letter, No. I-23-065; Quadri Advice Letter, No. A-02-096; Washington Advice Letter, No. I-91-521.)
Note: Section 84308 does not cover proceedings in which general policy decisions or rules are made or where the interests affected are many and diverse.
Examples of Entitlement for Use Proceedings
· Building and development permits
· Charter school petitions
· Conditional use permits
· Contracts generally, including
small purchase order agreements,
unless an exception applies
· Public street abandonments
· Private development plans
· Professional license revocations
· Rezoning of specific real estate
parcels
· Event Permits
· Rulemaking procedures affecting a
particular industry where only a
small number of businesses are
affected
· Special district formation
proceedings involving the creation
of a special use or benefit to the
persons in the district
· Tentative subdivision and parcel
maps
· Zoning variances
Fair Political Practices Commission 4 Parties, Participants, Agents, and Section 84308 October 2023
B. AM I A “PARTY,” “PARTICIPANT,” OR “AGENT”?
1. Parties
Section 84308 defines “party” as “any person who files an application for, or is the subject of, a proceeding involving a license, permit, or other entitlement for use.” In general, if you applied for a permit, license or for a right to use property in a particular way (for example, a short-term vacation rental application) that requires the agency’s discretionary approval, you will qualify as a party in an entitlement for use proceeding.
2. Participants
Section 84308 defines “participant” as any person who is not a party but who actively supports or opposes a particular decision in an entitlement for use proceeding and who has a financial interest in the decision.
In general, you will qualify as a participant if you have a financial interest in the proceeding and you communicate with an officer or employee of the agency for the purpose of influencing a decision in the proceeding.
Note: You would not qualify as a “participant” based on communications made to the public outside of the proceeding, such as publishing an op-ed in a local newspaper or protesting outside of a government building.
Participant Example 1
You send a letter to the City Council regarding an entitlement for use proceeding. If you have a financial interest in the proceeding, you qualify as a participant.
Participant Example 2
You make a public comment regarding an entitlement for use proceeding during a public meeting. If you have a financial interest in the proceeding, you qualify as a participant.
Participant Example 3
You write an op-ed article, published in the local paper, in support or opposition of a particular outcome in an entitlement for use proceeding. Even if you have a financial interest in the proceeding, as long as you do not communicate directly with the officer or agency regarding the proceeding, you do not qualify as a participant.
Fair Political Practices Commission 5 Parties, Participants, Agents, and Section 84308 October 2023
Financial Interests
Central to many of the above examples is the question of whether you have a “financial interest” in the proceeding such that you may qualify as a “participant.” In general, you are considered to have a “financial interest” for purposes of Section 84308 if it is reasonably foreseeable the proceeding, or a governmental decision within the proceeding, would have a material financial effect on one or more of your economic interests. Relevant economic interests include your interests in business entities, real property, sources of income, sources of gifts, and personal finances.
Determining whether you have a financial interest in a proceeding or particular governmental decision can be a complex matter. For this reason, if you have participated or are continuing to take part in an entitlement for use proceeding and you are not sure whether you have a financial interest in the decision, you should contact the FPPC for assistance. If you have a financial interest in the proceeding, such that you qualify as a “participant” for purposes of Section 84308, you are prohibited from contributing more than $250 to an officer of the agency while the proceeding is pending and for 12 months thereafter. More information on financial interests and when a financial interest is “material” can be found in our “Officers and Section 84308” Guide.
3. Agents
A person is your “agent” (as a party or participant) in an entitlement for use proceeding if the person:
· Represents you for compensation; and
· Appears before or otherwise communicates with the governmental agency for the purpose of influencing the pending proceeding.
Note: An individual will qualify as an agent only if the individual’s communication with an agency is for the purpose of influencing the pending proceeding. An individual whose communications with an agency are not made for the purpose of influencing the proceeding is not considered an agent, even if the individual receives compensation from a party or participant.
Participant Example 4
You protest outside of City Hall before an entitlement for use proceeding is held, yelling and chanting that the City Council should vote “no” on the underlying project.
Because the communication is made in a public setting outside of the proceeding itself, you do not qualify as a participant based on your protesting.
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Agent Example 1
Ainsley Atkinson, an attorney, is paid to represent you in obtaining a real estate development agreement and drafts a letter in support of the project on your behalf.
Atkinson sends the letter to the County Planning Commission ahead of the Commission’s consideration on whether to approve a building permit. Because Atkinson is paid to represent you and has communicated with the agency for the purpose of influencing the proceeding, Atkinson is your agent.
Agent Example 2
Continuing the above example, suppose Atkinson’s letter in support of the project is sent to the County Planning Commission by the attorney’s assistant, rather than Atkinson herself. Although the letter is intended to influence the proceeding, the assistant’s purpose in sending the letter is not; rather, the assistant’s purpose in sending the letter is administrative/secretarial. Likewise, the assistant is not paid to represent you; the assistant is paid to assist Atkinson. For these reasons, the assistant is not your agent.
Agent Example 3
Continuing the above examples, suppose a public meeting is held where the Planning Commission considers the project application. At the meeting, the project architect you hired, Priyanka Archer, attends in order to provide purely technical data or analysis in response to any questions the Planning Commission has. As long as the information is not provided for the purpose of influencing the proceeding, Archer is not your agent.
Fair Political Practices Commission 7 Parties, Participants, Agents, and Section 84308 October 2023
C. WHO QUALIFIES AS AN “OFFICER OF AN AGENCY”?
Section 84308 defines “officer” as “any elected or appointed officer of an agency, any alternate to an elected or appointed officer of an agency, and any candidate for elected office in an agency.” In general, the term “officer of an agency” encompasses any individual who:
(1) Is appointed, elected, or is an employee of the agency who is also running for office; and
(2) May make, participate in making, or attempt to use their official position to influence a decision in the entitlement for use proceeding, or exercises authority or budgetary control over the agency of officers who may do so.
As a party, participant, or agent thereof, you are prohibited from contributing more than $250 in the aggregate to an officer of an agency during a 12 month period while the proceeding is pending and for 12 months after the final decision in the proceeding.
Officer Example 1
You have submitted a building permit application to the City Planning Commission.
Because the City Council exercises authority or budgetary control over the Planning Commission, you are not only prohibited from contributing more than $250 to a member of the Planning Commission who is running for elective office while the proceeding is pending and for 12 months thereafter, but that prohibition also applies to contributions made to members of the City Council as “officers of the agency,” as well as certain City officials who are also running for elective office and have decisionmaking authority with respect to the proceeding.
Officer Example 2
You are negotiating with City representatives regarding the City’s potential purchase of a parcel of land you own. While the proceeding is pending, you contribute $500 to a candidate for City Council. Although the candidate meets the definition of “officer,” they do not meet the more specific definition of “officer of an agency,” to whom you are prohibited to contribute more than $250 to while an entitlement for use proceeding is pending. Accordingly, your contribution of $500 does not violate Section 84308.
However, if the candidate won their election and your $500 contribution occurred within the preceding 12 months, the new City Councilmember would be prohibited from taking part in the proceeding if it was still pending before the City Council.
Fair Political Practices Commission 8 Parties, Participants, Agents, and Section 84308 October 2023
D. WHEN IS AN ENTITLEMENT PROCEEDING
“PENDING”?
For a party or party’s agent, or a participant or participant’s agent, an entitlement for use proceeding is “pending” when it is before the jurisdiction of the agency for its decision or other action.
In other words, for a party and party’s agent, an entitlement for use proceeding is considered pending the moment the proceeding is initiated, most often triggered by the party’s filing of an application with the agency.
Note: As described above, in order to be considered a “participant,” an individual has to have a financial interest in the entitlement for use proceeding and have communicated with an officer or employee of the agency for the purpose of influencing the proceeding. Accordingly, although an entitlement for use proceeding may have already been initiated by, say, a party’s filing of an application, an individual other than a party or the party’s agent is not prohibited from contributing more than $250 in the aggregate until after they qualify as a participant or participant’s agent.
Pending Proceeding Example 1
You file an application with the City Parks Department to host a large, ticketed event at a City park. The application will initially be considered and decided by the Parks Department, but a denial by the Parks Department may be appealed to the City Council. For you, the project is pending with respect to the City Parks Department, and with respect to the City Council.
Pending Proceeding Example 2
Continuing the above example, suppose the Parks Department denies your application, but you decide not to appeal the decision to the City Council. Although you have privately decided not to appeal the decision, no “final decision” has been reached during the period in which the Parks Department’s decision may still be appealed. Accordingly, the proceeding is still considered pending with respect to the City Council for purposes of Section 84308.
Fair Political Practices Commission 9 Parties, Participants, Agents, and Section 84308 October 2023
E. HOW IS THE $250 LIMIT CALCULATED?
Section 84308’s prohibition on contributions exceeding $250 over a 12 month period refers to the aggregate value of contributions made over that time period. For example, you are not permitted to contribute a total of $1,000 to an officer in a 12 month period simply by making four $250 contributions.
Knowing the aggregate value of contributions you have made to an officer of an agency over a 12-month period is important for purposes of: (1) avoiding a violation of Section 84308 by contributing more than $250 during a 12-month period; and (2) if you are a party, ensuring contributions over $250 made in the preceding 12 months are properly disclosed.
To determine whether you have contributed more than $250 as a party or participant during a 12-month period, you must aggregate the following:
(1) All contributions you have made;
(2) All contributions made by your agent during the shorter of: (A) the previous 12- month period; or (B) the period beginning on the date you first hired the agent as either a paid employee, contractor, or consultant.
(3) All contributions made by an individual, other than an uncompensated officer of a non-profit organization, required to be aggregated with contributions made by you and your agent under Section 82015.5 of the Political Reform Act.
Section 82015.5
Section 82015.5 provides:
· If you direct or control an entity’s contributions, the entity’s contributions shall be aggregated with contributions made by you; and any other entity whose contributions that individual directs or controls.
· If two or more entities make contributions that are directed or controlled by a majority of the same persons, the contributions of those entities shall be aggregated.
· Contributions made by entities that are majority owned by you shall be aggregated with your contributions, as well as the contributions of all other entities majority owned by you, unless those entities act independently in their contribution-making decisions.
In practice, Section 82015.5’s aggregation rules will most frequently come into play when you make a contribution in your personal capacity, and make another contribution through a business that you direct or control.
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F. WHAT ARE MY RESPONSIBILITIES IF I HAVE MADE
GREATER THAN $250 IN CONTRIBUTIONS WITHIN THE
PAST 12 MONTHS?
1. Prohibition on Further Contributions During a 12-Month Period Section 84308 prohibits parties, participants, and their agents from “mak[ing] a contribution of more than two hundred fifty dollars ($250) to any officer of [the agency the entitlement for use proceeding is before] during the proceeding and for 12 months following the date a final decision is rendered by the agency in the proceeding.” Each contribution beyond the $250 limit may constitute a separate violation of this provision. Accordingly, if you have already violated Section 84308 by contributing more than $250 to an officer during a 12-month period while a proceeding is pending and for 12 months thereafter, you should be aware that additional contributions in violation of Section 84308 may carry additional penalties.
Aggregation Example
You contributed $100 to a Planning Commissioner’s campaign committee on January 1, the day before you submitted a building permit application to the planning commission. On February 1, you contributed another $50 to the campaign committee, but did so through your business. On March 1, you hired an attorney to represent you and, that same day, your attorney submitted a letter in support of your application to the Planning Commission. Your attorney had previously contributed $100 to the Planning Commissioner’s campaign committee on February 1, before she became your agent. On April 1, your attorney contributes another $50 to the Planning Commissioner’s campaign committee. For purposes of aggregation, the relevant contributions are:
· January 1: Your personal $100 contribution
· February 1: Your business’s $50 contribution
· April 1: Your agent’s $50 contribution
In total, your aggregate contribution to the Planning Commissioner is $200 and does not need to be disclosed. Although your agent also donated another $100 to the Commissioner’s campaign committee on February 1, that contribution was made before she became your agent and, consequently, is not aggregated with your contributions. Accordingly, you (and those whose contributions are aggregated with yours, including your agent) may contribute an additional $50 within a 12-month period, but any more than that during the 12-month period would violate Section 84308 and must be disclosed.
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2. Disclosure
If you are a party to an entitlement for use proceeding and your aggregate contribution to an officer of the agency over the past 12 months is greater than $250, you are required to disclose the contribution as follows:
· Timing:
o Contributions Made Before Pending Proceeding: If you made the contribution before the proceeding is pending, you must make the disclosure on the date you file your application or otherwise initiate the proceeding (Note: you do not violate Section 84308 by making a contribution greater than $250 during the 12 months preceding an entitlement for use proceeding, but such contributions must still be disclosed);
o Contributions Made During Pending Proceeding: If you made a contribution exceeding $250 while the proceeding is pending (in violation of Section 84308), you are required to disclose that contribution within 30 days of making the contribution, or the date on which you make your first appearance before or communication with the agency regarding the proceeding following the contribution, whichever is earliest. o Agents: If an agent of yours makes an appearance before or communicates with the agency subsequent to your previous disclosure, you or the agent must disclose the agent’s identity on the date of the agent’s first appearance or communication with the agency following your disclosure. · Contents: The disclosure must include:
o The amount contributed by you, your agent, and those required to be aggregated with your contributions under Section 82015.5 within the preceding 12 months; and
o The name(s) of the contributor(s).
· Form: Neither Section 84308 nor its related regulations specify the exact form disclosure must take beyond the requirements discussed in the “Disclosure” section above. Given the wide variety of agencies and jurisdictions Section 84308 applies to, disclosure may take different forms. Your disclosure must be made “on the record of the proceeding,” and, if applicable, conform to the format specified by the agency. This may include, for example, noting the contribution on your application or submitting a separate form to accompany your application.
Note: While a party to a proceeding is required to follow the disclosure procedure described above, a participant in a proceeding does not have any disclosure requirements. However, a participant is still prohibited from contributing more than $250 while the proceeding is pending and for 12 months thereafter.
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G. FREQUENTLY ASKED QUESTIONS
1. What are the potential consequences for violating Section 84308? As with most provisions of the Political Reform Act, a violation of Section 84308 may result in a civil action brought by the FPPC for an amount up to five thousand dollars ($5,000) per violation.
The Political Reform Act also provides that, as a criminal matter, any person who knowingly or willingly violates any provision of the Act is guilty of a misdemeanor and subject to a fine of up to the greater of ten thousand dollars ($10,000) or three times the amount the person unlawfully contributed upon conviction for each violation.
2. What is the best way to know if I have a financial interest in an entitlement for use proceeding?
If you are a party in an entitlement for use proceeding, Section 84308’s requirements and prohibitions automatically apply to you. The relevance of a “financial interest” in an entitlement for use proceeding is only relevant to determining whether an individual qualifies as a “participant” for purposes of Section 84308.
If you have participated, or would like to participate in an entitlement for use proceeding but are unsure of whether you may qualify as a “participant,” under Section 84308, you should contact the FPPC with any questions. As a general rule, however, you have a financial interest in an entitlement for use proceeding if it is reasonably foreseeable the proceeding, or a governmental decision that is a part of the proceeding, would have a material financial effect on an economic interest of yours, such as a business interest, a real property interest, or a source of income. You may also find it helpful to review our guide on Officers and Section 84308, available on our website (https://www.fppc.ca.gov/learn/pay-to-play-limits-and-prohibitions.html), as it contains a more detailed discussion regarding the determination of financial interests for Section 84308 purposes. Additional information on conflicts of interest may be found at https://www.fppc.ca.gov/learn/conflicts-of-interest-rules.html.
3. If I am a party or qualify as a participant in an entitlement for use proceeding, does the $250 limit include contributions made by my spouse? In general, spouses’ contributions are not aggregated for purposes of disqualification under Section 84308, except in the following two scenarios:
(1) Where the proceeding involves property or a business that is owned jointly by the spouses; or
(2) Where the spouse is acting as the agent of the party or participant spouse.
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4. If my employer is a party in an entitlement for use proceeding, am I prohibited from contributing more than $250 to an officer of the agency? Are my contributions aggregated with my employer’s contributions? In most cases, the fact that your employer is a party in a proceeding will not impact your ability to contribute more than $250 to an officer of the agency the proceeding is pending before. The mere fact that you are an employee of a company does not mean you also qualify as a party, participant, or agent; rather, additional circumstances would have to apply.
· Parties: In order to be treated as a party based on the fact that your employer is a party—and therefore have your contributions aggregated with your employer’s—you would have to be more than merely a “rank-and-file” employee.
Rather, you would have to be an individual who directs or controls your employer’s campaign contributions or be the majority owner of the company. · Agents: To be considered an agent based on your employer’s status as a party, as discussed above, you would have to: (1) represent your employer for compensation; and (2) appear before or otherwise communicate with the governmental agency for the purpose of influencing the pending proceeding.
Example: if you felt strongly about the proceeding and decided to submit a public comment in support of your employer’s application in a proceeding—but did so in your personal capacity rather than as an employee as a part of your job—you would not qualify as an “agent” on the basis of your employment and communication with the agency, but you may still qualify as a participant. · Participants: If you communicate with an officer or agency for the purpose of influencing a proceeding, but do not do so as an agent, you may qualify as a participant. As discussed above, you will generally qualify as a participant in situations where: (1) you communicate with the agency or an officer of the agency for purposes of influencing the proceeding; and (2) you have a financial interest in the proceeding—that is, where the proceeding would have a reasonably foreseeable, material financial effect on your source of income.
In the ordinary context where your employer is a business entity or non-profit organization, a proceeding will be considered to have a reasonably foreseeable, material financial effect on the entity or organization if the entity/organization is a party in the proceeding.
5. Does Section 84308 apply the same way to non-profit organizations as it does to businesses?
In general, Section 84308 applies the same to non-profit organizations as it does to businesses and any other entity or individual. A non-profit organization may be subject to the $250 limit if the organization qualifies as a party, participant, or agent of a
Fair Political Practices Commission 14 Parties, Participants, Agents, and Section 84308 October 2023
party or participant. Similarly, as discussed in Question 4 above, officers and employees of a non-profit organization are not subject to Section 84308 unless the officers or employees themselves qualify as parties, participants, or agents.
The one distinction between Section 84308’s treatment of non-profit organizations compared to other entities is that the contributions of a non-profit officer whose contributions would ordinarily be aggregated with contributions by the non-profit pursuant to Section 82015.5 (see discussion above) are not aggregated if the non-profit officer is uncompensated.
6. What if the entitlement for use proceeding lasts longer than one year? Am I prohibited from contributing more than $250 even if the proceeding extends to, say, two or three years?
Section 84308’s $250 contribution limit applies to any 12-month period before, during, and immediately after an entitlement for use proceeding. In the event that a proceeding extends longer than 12 months, a party, participant, or agent would not violate Section 84308 by making an additional contribution, as long as the total contribution within the preceding 12 months was $250 or less.
For example, if on January 1, 2023, a party filed an application for an entitlement that would eventually be considered by the city council and, that same day, the party contributed $250 to each city councilmember, then on January 1, 2024, the party would be permitted to contribute an additional $250 to each city councilmember and would not be required to disclose those contributions.
Re-framing the above example, suppose the party contributed only $150 to each councilmember on January 1, 2023, then contributed an additional $100 to each councilmember on July 1, 2023. On January 1, 2024, the party would be permitted to contribute an additional $150, not $250 as in the above example. This is because the $100 contribution from July 1, 2023 occurred within the preceding 12 months. If the party contributed $150 on January 1, 2023, and $100 on July 1, 2023, the party would be permitted to contribute another $250 on July 1, 2024, because at that point the party would not have made any contribution within the preceding 12 months.
7. What if it has been less than 12 months since I made a contribution in 2022? Do contributions made in 2022 count toward the $250 limit? Under Regulation 18438, Section 84308’s provisions, as amended by SB 1439 and effective as of January 1, 2023, do not apply to contributions received prior to that date. Accordingly, if you made a contribution to an elected official in 2022, that contribution does not implicate Section 84308’s prohibitions and requirements (e.g., a party is not required to disclose a $250+ contribution that occurred in 2022).
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8. May I contribute $250 to one committee controlled by a candidate and also contribute $250 to another committee controlled by the same candidate? The $250 limit applies to each candidate, not each committee, such that a party, participant, or agent may not donate more than $250 across all of an officer’s controlled committees.
9. Are project labor agreements establishing the terms and conditions of employment for workers on certain projects considered exempt “labor contracts” under Section 84308?
Yes. A “labor contract” is defined as “a contract or agreement reached through collective bargaining or with a representative group regarding the salary, benefits, or terms and conditions under an employment or retirement policy for employees or retirees, including a project labor agreement entered into under Public Contract Code Section 2500.”
10. If a union representative provides public comment in support or in opposition of a governmental decision and indicates the decision will have a financial impact on its members, is the union considered a “participant”? To be a “participant,” a person or entity (including a non-profit organization) must have a financial interest in the proceeding. A non-profit organization such as a union does not necessarily have a financial interest in a proceeding solely because it would be beneficial to the organization’s members. Rather, the proceeding would need to have a reasonably foreseeable, material financial effect on the organization itself. The relevant standards for determining a reasonably foreseeable, material financial effect on a nonprofit organization are:
· Change in Receipts: The decision may result in an increase or decrease of the organization's annual gross receipts, or the value of the organization's assets or liabilities, in an amount equal to or more than: $1,000,000; or five percent of the organization's annual gross receipts and the increase or decrease is equal to or greater than $10,000.
· Change in Expenses: The decision may cause the organization to incur or avoid additional expenses or to reduce or eliminate expenses in an amount equal to or more than: $250,000; or one percent of the organization's annual gross receipts and the change in expenses is equal to or greater than $2,500. · Impact on Real Property: The official knows or has reason to know that the organization has an interest in real property and: the property is a named party in, or the subject of, the decision; or there is clear and convincing evidence the decision would have a substantial effect on the property.
Accordingly, unless it is reasonably foreseeable that a non-profit organization would experience any of the above financial effects (e.g., the union’s receipt of union dues increases by $1,000,000 as a result of the increased union wages caused by a
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government contract), the non-profit organization will not qualify as a “participant” and an officer is not prohibited from receiving more than $250 from the organization advocating for or against a particular decision in an entitlement proceeding.
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CONTENTS
Introduction ................................................................................................................... 3 A. Am I an “Officer”? .................................................................................................. 4
1. Qualifications ....................................................................................................................................................4
2. Exceptions ........................................................................................................................................................4 B. What Are My Responsibilities and Limitations? .................................................. 5
1. Prohibition: Accepting, Soliciting, or Directing Contributions Exceeding $250 During 12-Month Period While the Proceeding is Pending and 12 Months After........................................................................................................5
2. Prohibition: Taking Part in Entitlement for Use Proceeding...............................................................................6
3. Disclosure Requirements: Contributions Received in Prior 12 months .............................................................6 C. Am I Taking Part in a “Pending License, Permit, or Other Entitlement for Use” Proceeding? .................................................................................................................. 7
1. License, Permit, or Other Entitlements for Use Proceedings ............................................................................7
2. When is the Proceeding “Pending”? .................................................................................................................8 D. For the Proceeding, Who Are the “Parties, Participants, or Their Agents”?..... 9
1. Parties...............................................................................................................................................................9
2. Participants .......................................................................................................................................................9
3. Agents.............................................................................................................................................................10 E. Do I “Know or Have Reason to Know” a Participant Has a “Financial Interest in the Proceeding”? .................................................................................................... 12
1. What is a Financial Interest in a Proceeding?.................................................................................................12
2. When Do I Know About it?..............................................................................................................................12
3. Standards and Facts Relevant to Particular Types of Participant’s Financial Interests...................................13 a. Explicitly Involved Interest in the Proceeding ..................................................................................................13 b. Business Entity Interest in the Proceeding. .....................................................................................................14 c. Real Property Interests in the Proceeding. .....................................................................................................15 d. Source of Income Interests.............................................................................................................................16 e. Source of Gift Interests...................................................................................................................................17 f. Personal Finances...........................................................................................................................................17 F. Have I “Willfully or Knowingly” Received a $250 or Greater Contribution From a Party, Participant, or Agent Within the Past 12 Months? ..................................... 18
1. Knowledge of a Contribution...........................................................................................................................18 Officers and Section 84308
October 2023
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2. How is the $250 Calculated? ..........................................................................................................................19 G. Can I Return a Contribution?............................................................................... 22 H. Frequently Asked Questions ............................................................................... 23
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INTRODUCTION
Section 84308 is a California law aimed at preventing “pay-to-play” practices, in part, by prohibiting parties, participants, and their respective agents in a proceeding involving a license, permit, or other entitlement for use (collectively referenced as an “entitlement for use proceeding” or “proceeding”) from contributing more than $250 to an officer of the agency the proceeding is before during a 12-month period. An officer is similarly prohibited from accepting, soliciting or directing such a contribution. The prohibition on contributions applies to any 12-month period while the proceeding is pending and for 12 months following the date a final decision is rendered in the proceeding.
Under Section 84308, the officer of an agency is required to disclose any contribution exceeding an aggregate $250 that a party or any participant has made to them within the 12 months preceding the proceeding. Further, the officer of an agency may not make, participate in making, or in any way attempt to use their official position to influence the decision in the proceeding pending before the agency if the officer has received a contribution of more than $250 within the preceding 12 months from a party, or a party’s agent. An officer of an agency is similarly prohibited from taking part in a proceeding if the officer received a contribution of more than $250 within the preceding 12 months from a participant, or participant’s agency, if the officer knows or has reason to know that the participant has a financial interest in the decision.
When it was first enacted in 1982, Section 84308 applied to appointed members of boards and commissions who were running for elective office. (Stats. 1982, ch. 1049 § 1 (“Levine Act”).) However, effective January 1, 2023, the Legislature expanded the scope of its prohibitions to apply to agencies whose members are directly elected by voters and extend the prohibitions from 3 months to 12 months after the final decision in a proceeding. (Stats. 2022, ch. 848 § 1 (“SB 1439”) .)
The following is a step-by-step guide to help you determine:
· Whether you are an “officer” subject to Section 84308’s prohibitions; · What your responsibilities are;
· What type of proceedings are covered;
· Who meets the definition of a party, participant or their agent; · When there is a financial interest involved; and
· What to do in the event you have accepted a contribution subject to the prohibitions in Section 84308.
Frequently Asked Questions are also addressed.
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A. AM I AN “OFFICER”?
1. Qualifications
Section 84308 defines “officer” as “any elected or appointed officer of an agency, any alternate to an elected or appointed officer of an agency, and any candidate for elected office in an agency.”
To determine whether you qualify as an “officer” for purposes of Section 84308, and an “officer of the agency” subject to the restrictions of Section 84308, ask yourself:
(1) Do I have the ability to:
a. “Make, participate in making, or in any way attempt to use my official position to influence” a decision (defined further below) in the relevant entitlement for use proceeding; or
b. Exercise authority or budgetary control over the agency of officers who may do so?
(2) Do I serve in any of the following capacities:
a. In an elected position;
b. As a member of a board or commission;
c. As the chief executive of a state agency or county, city or district of any kind; or
d. In a position with decision-making authority with respect to the proceeding and I am also a candidate for elected office or I was a candidate for elected office in the 12 months prior to the proceeding? If your answer to both of the above questions is “yes,” then you qualify as an “officer” for purposes of Section 84308 and you are an “officer of the agency” subject to the applicable restrictions.
Note: A candidate for elective office who does not meet any of the above criteria is not an “officer of the agency” and the Section 84308 restrictions applicable to an “officer of the agency” will not apply until such time as the candidate serves in one of the positions noted above. (See, e.g., Butler Advice Letter, No. A-23-103.)
2. Exceptions
The term “officer” does not apply to any person acting in any of the following positions:
· Member of the courts or any agency in the judicial branch; · Member of the Legislature;
· Member of the Board of Equalization; or
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· A Constitutional officer (i.e., the Governor, Lieutenant Governor, Attorney General, Controller, Insurance Commissioner, Secretary of State, State Treasurer, and Superintendent of Public Instruction).
B. WHAT ARE MY RESPONSIBILITIES AND
LIMITATIONS?
If you meet the definition of an “officer” under Section 84308 and are an “officer of the agency,” or become an “officer of the agency” following your candidacy, you are subject to the following prohibitions related to entitlement for use proceedings:
1. Prohibition: Accepting, Soliciting, or Directing Contributions Exceeding $250 During 12-Month Period While the Proceeding is Pending and 12 Months After
For any entitlement for use proceeding, you are prohibited from accepting, soliciting, or directing a contribution of more than two hundred fifty dollars ($250) from any party or a party’s agent, or from any participant or a participant’s agent if you know or have reason to know that the participant has a financial interest in the proceeding.
This applies during any 12-month period while the proceeding is pending and for 12 months following the date of the final decision.
12-Month Period Example 1
A party files an application with your office on January 1, 2023. The same day, the party contributes $250 to your campaign committee. Your agency’s consideration of the application extends beyond one year and, on January 1, 2024, the party contributes another $250 to your campaign committee. The party does not violate Section 84308 by making the second contribution while the proceeding is pending and you do not violate Section 84308 by accepting the second contribution because you have not received more than $250 during any 12-month period.
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2. Prohibition: Taking Part in Entitlement for Use Proceeding You are prohibited from making, participating in making, or in any way attempting to use your official position to influence the decision in an entitlement for use proceeding pending before the agency if you have willfully or knowingly received a contribution in an amount of more than two hundred fifty dollars ($250) within the preceding 12 months from a party or a party’s agent, or from any participant or a participant’s agent if you know or have reason to know that the participant has a financial interest in the decision. · Making a Governmental Decision: You “make” a governmental decision if you authorize or direct any action, vote, appoint a person, obligate or commit your agency to any course of action, or enter into any contractual agreement on behalf of your agency.
· Participating in a Governmental Decision: You “participate in making a governmental decision” if you provide information, an opinion, or a recommendation for the purpose of affecting the decision without significant intervening substantive review.
· Attempting to Use Official Position to Influence a Governmental Decision:
You “attempt to use your official position to influence a governmental decision” if you: (1) contact or appear before any official in your agency or in an agency subject to the authority or budgetary control of your agency for the purpose of affecting a decision; or (2) contact or appear before any official in any other government agency for the purpose of affecting a decision, and you act or purport to act within your authority or on behalf of your agency in making the contact.
3. Disclosure Requirements: Contributions Received in Prior 12 months If you have received a contribution exceeding $250 from a party, participant, or agent thereof within the preceding 12 months, you are required to disclose (or have another agency officer or employee disclose on your behalf) the contribution as follows:
12-Month Period Example 2
A party files an application with your office on January 1, 2023. The same day, the party contributes $150 to your campaign committee. On July 1, 2023, the party contributes another $100. The matter is pending before you the proceeding extends beyond one year. On January 1, 2024, the party contributes another $250.
The party violates Section 84308 and you will violate Section 84308 by accepting the $250 contribution because you received more than $250 during a 12-month period.
You received $100 from the party on July 1, 2023, and $250 on January 1, 2024, for a total of $350 during a 12-month period.
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· Form: Disclosure may be made orally or in writing when made in a meeting.
Disclosure must be made in writing if no meeting is held. · Timing: If a public meeting is held, disclosure must be made at the beginning of the meeting. If you learn of the party’s contribution or the participant’s contribution and financial interest during the meeting, disclosure must be made before you continue to take part in the proceeding. If no public meeting is held, written disclosure must be entered into the agency’s public record. · Contents: The disclosure must include:
o The fact that you have received contributions from a party, participant, or agent thereof, greater than $250 within the preceding 12 months; and o The name(s) of the contributor(s).
· Legally Required Participation: If you are taking part in a governmental decision on the basis that your participation is legally required, the disclosure must also include:
o A summary description of the circumstances under which you believe the conflict may arise; and
o The legal basis for concluding there is no alternative source of decision.
C. AM I TAKING PART IN A “PENDING LICENSE,
PERMIT, OR OTHER ENTITLEMENT FOR USE”
PROCEEDING?
1. License, Permit, or Other Entitlements for Use Proceedings Section 84308 defines the term “license, permit, or other entitlement for use” to mean “all business, professional, trade, and land use licenses and permits and all other entitlements for use, including all entitlements for land use, all contracts (other than competitively bid, labor, or personal employment contracts), and all franchises.” The term “entitlement for use” is not defined by Section 84308. The overall scheme and purpose of Section 84308 suggests that the types of proceedings which should be covered by Section 84308 are those in which specific, identifiable persons are directly affected or in which there is a direct substantial financial impact upon the participants. The California courts have examined the term “entitlement for use” in other contexts. These decisions provide useful guidance; however, interpretation of the Act is not necessarily limited by interpretation of other laws. Below is a list of proceedings the FPPC has previously advised on as entitlement for use proceedings. (See, e.g., Velasquez Advice Letter, No. I-23-065; Quadri Advice Letter, No. A-02-096; Washington Advice Letter, No. I-91-521.)
Note: Section 84308 does not cover proceedings in which general policy decisions or rules are made or where the interests affected are many and diverse.
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2. When is the Proceeding “Pending”?
For an officer, an entitlement for use proceeding has commenced and is considered “pending” only when:
· The decision is before you for your consideration. If you are a member of a governing body, this includes any item placed on the agenda for discussion or decision at a public meeting of the body; or
· You know or have reason to know the proceeding is before the jurisdiction of your agency for its decision or other action, and it is reasonably foreseeable the decision will come before you in your decision-making capacity. · Note: A different definition of “pending” applies to parties, participants, and their agents. For these persons, it is “pending” when it is before the agency’s jurisdiction for action.
Examples of Entitlement for Use Proceedings
· Building and development permits
· Charter school petitions
· Conditional use permits
· Contracts generally, including
small purchase order agreements,
unless an exception applies
· Public street abandonments
· Private development plans
· Professional license revocations
· Rezoning of specific real estate
parcels
· Event permits
· Rulemaking procedures affecting a
particular industry where only a
small number of businesses are
affected
· Special district formation
proceedings involving the creation
of a special use or benefit to the
persons in the district
· Tentative subdivision and parcel
maps
· Zoning variances
Pending Proceeding Example 1
A non-profit organization submits a permit application to the City Parks Department to host a large event at a City park. You are a member of the City Council. Absent any outside knowledge, at this point, you do not “know or have reason to know” about the proceeding and, therefore, it is not “pending” for you. Therefore, you would not violate Section 84308 by accepting, soliciting, or directing a contribution of more than $250 from the non-profit at this point in the process.
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D. FOR THE PROCEEDING, WHO ARE THE “PARTIES,
PARTICIPANTS, OR THEIR AGENTS”?
1. Parties
Section 84308 defines “party” as “any person who files an application for, or is the subject of, a proceeding involving a license, permit, or other entitlement for use.”
2. Participants
Section 84308 defines “participant” as any person who is not a party but who actively supports or opposes a particular decision in an entitlement for use proceeding and who has a financial interest in the decision.
In general, a person will qualify as a participant if the person has a financial interest in the proceeding and communicates with you or agency staff for the purpose of influencing a decision in the proceeding. This includes when the person:
· Lobbies in person;
· Testifies in person; or
· Otherwise acts to influence a proceeding by communicating with an officer or employee of the agency for the purpose of influencing a decision in the proceeding.
Note: This does not include communications made to the public outside of the proceeding.
Pending Proceeding Example 2
Continuing the above example, the event permit application is rejected by the Parks Department and the non-profit appeals the decision to the City Council. The nonprofit’s permit item appears on the agenda for an upcoming City Council meeting. At this point, the proceeding is “pending” for you and you are now prohibited from accepting, soliciting, or directing a contribution of more than $250 from the non-profit.
Pending Proceeding Example 3
Alternatively, suppose that prior to the permit decision appearing on a City Council meeting agenda, a City staff member told you that the project was pending before the Parks Department and would likely come before the City Council at some point if the Parks Department rejects the application. Because you have this information, the proceeding would be “pending” for you, even though the item had not yet been included on a City Council meeting agenda.
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Financial Interests
In general, a person is considered to have a “financial interest” for purposes of Section 84308 if it is reasonably foreseeable the proceeding, or a governmental decision within the proceeding, would have a material financial effect on one or more of the person’s economic interests. Relevant economic interests include the person’s interests in business entities, real property, sources of income, sources of gifts, and personal finances.
Determining whether a person has a financial interest in a proceeding or particular governmental decision can be a complex matter. For this reason, if you have knowledge or reason to know that a person who may qualify as a participant in a proceeding has a potential financial interest, you should contact the FPPC for assistance to understand whether the duties and prohibitions of Section 84308 will apply. More information on financial interests, when a financial interest is “material” and when you would have “reason to know” is detailed further below.
3. Agents
A person is the “agent” of a party or participant in a pending entitlement for use proceeding if the person:
· Represents that party or participant for compensation; and · Appears before or otherwise communicates with the governmental agency for the purpose of influencing the pending proceeding.
Participant Example 1
One person sends a letter to the City Council regarding an entitlement for use proceeding. Another person makes a public comment regarding the entitlement for use proceeding during a public meeting. If either person has a financial interest in the proceeding, that person qualifies as a participant.
Participant Example 3
One person writes an op-ed article, published in the local paper, in support of the City Council approving an application in an entitlement for use proceeding. Another person protests outside of City Hall before the entitlement for use proceeding is held, yelling and chanting that the City Council should vote no on the underlying project. Even if one of these persons has a financial interest in the proceeding, as long as the person does not communicate directly with the officer or agency regarding the proceeding, the person is not a participant.
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Note: An individual will qualify as an agent only if the individual’s communication with an agency is for the purpose of influencing the pending proceeding. An individual whose communications with an agency are not made for the purpose of influencing the proceeding is not considered an agent for purposes of Section 84308, even if the individual receives compensation from a party or participant.
Agent Example 1
Ainsley Atkinson, an attorney, is paid to represent a client real estate developer, Rio Estates, in obtaining a real estate development agreement and drafts a letter in support of the project on behalf of Rio Estates. Atkinson sends the letter to the County Planning Commission ahead of the Commission’s consideration on whether to approve a building permit. Because Atkinson is paid to represent Rio Estates and has communicated with the agency for the purpose of influencing the proceeding, Atkinson is an agent for Rio Estates.
Agent Example 2
Suppose Atkinson’s letter in support of the project is sent to the County Planning Commission by Atkinson’s assistant, rather than Atkinson herself. Although the letter is intended to influence the proceeding, the assistant’s purpose in sending the letter is not; rather, the assistant’s purpose in sending the letter is administrative/secretarial.
Likewise, the assistant is not paid to represent Rio Estates; the assistant is paid to assist Atkinson. For these reasons, the assistant is not an agent Rio Estates.
Agent Example 3
Continuing the above examples, the Planning Commission considers the project application. The project architect, Priyanka Archer, hired by the client, attends the meeting and provides purely technical data and analysis in response to Planning Commission questions. As long as Archer does not otherwise engage in direct communications for the purpose of influencing the proceeding, Archer is not an agent for Rio Estates.
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E. DO I “KNOW OR HAVE REASON TO KNOW” A
PARTICIPANT HAS A “FINANCIAL INTEREST IN THE
PROCEEDING”?
1. What is a Financial Interest in a Proceeding?
Under the Political Reform Act, a person has a “financial interest” in a governmental decision when it is reasonably foreseeable that the governmental decision at issue would have a material financial effect (of a positive or negative nature) on a person’s interest in:
· A business entity as an employee, director, officer partner, trustee, manager or an investment interest of $2,000 or more.
· Real property with a value of $2,000 or more including a leasehold interest but not a month-to month tenancy.
· Source of income totaling $500 or more in the 12 months prior to the proceeding.
· Source of gift totaling $590 or more in the 12 months prior to the proceeding. · The participant’s personal finances or the participant’s immediate family member.
Note: For a party in an entitlement for use proceeding, Section 84308’s requirements and prohibitions automatically apply. The relevance of a “financial interest” in an entitlement for use proceeding is only relevant to determining whether an individual qualifies as a participant for purposes of Section 84308.
2. When Do I Know About it?
As an officer, you are considered to “know or have reason to know” that a participant has a financial interest in a decision only if you have actual knowledge of the financial interest, or the participant reveals facts in written or oral statements during the proceeding before you that make the participant’s financial interest apparent.
Under Section 84308, you are required to consider all relevant facts known to you in determining whether a participant has made a financial interest apparent. This includes:
· The specificity with which the participant has described their economic interests; · The potential for a material financial effect on those interests as a result of the decision; and
· The realistic possibility of the financial effect.
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Note: If a participant describes or mentions the financial impact a proceeding, or a governmental decision within the proceeding, would or could have on the participant’s financial interest you must consider the information provided and the impact the decision may have on the interest.
In addition to the general rule stated above, you will by default be deemed to have “reason to know” that a participant has a financial interest in the proceeding if you have facts indicating the participant has any of the following:
· A business entity interest that may see a significant increase or decrease in customers as a result of the proceeding;
· A real property interest located within 500 feet of the real property at issue in the proceeding. (Note: An officer does not have “reason to know” if the facts are solely that the participant has an economic interest located in the general vicinity of a business entity or real property at issue in the proceeding.)
· A business relationship with the applicant and the decision may result in additional services provided to the applicant.
Note: if the officer knows there is clear and convincing evidence establishing it is not reasonably foreseeable the decision will have material financial effect on the participant’s interests, the participant does not have a financial interest in the proceeding.
3. Standards and Facts Relevant to Particular Types of Participant’s Financial Interests
To determine whether you “know or have reason to know” that the participant has a financial interest in the decision for purposes of Section 84308, ask yourself if you have any of the information discussed below:
a. Explicitly Involved Interest in the Proceeding
If an individual has an economic interest such as a business entity, real property, or source of income explicitly involved in the proceeding, the individual will have a financial interest in the proceeding and therefore qualify as a participant. For example, if the individual’s employer is the applicant in the proceeding and the individual provides public comment—even in their capacity as a private citizen rather than as an agent advocating in their paid capacity as an employee—the individual will qualify as a participant.
However, in circumstances where it is not apparent that the individual’s economic interest is explicitly involved in the proceeding, consider the following:
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b. Business Entity Interest in the Proceeding.
Generally, a participant’s financial interest in a business entity not explicitly involved in a governmental decision will only become apparent if they reveal facts indicating any of the following:
· Change in Revenue: The decision may result in an increase or decrease of the entity's annual gross revenues, or the value of the entity's assets or liabilities, in an amount equal to or more than: (A) $1,000,000; or (B) five percent of the entity's annual gross revenues and the increase or decrease is at least $10,000. · Change in Expenses: The decision may cause the entity to incur or avoid additional expenses or to reduce or eliminate expenses in an amount equal to or more than:
(A) $250,000; or (B) one percent of the entity's annual gross revenues and the change in expenses is at least $2,500.
· Impact on Real Property: The entity has an interest in real property and: (A) the property is a named party in, or the subject of, the decision; or (B) there is clear and convincing evidence the decision would have a substantial effect on the property.
Business Entity Example 1
A person provides public comment at a City Council meeting, speaking in support of a developer’s permit application. The person specifies, “I work for the developer, but I’m not being paid to be here. I’m just here in my personal capacity because I think the project would benefit the community.” Here, the participant has a business entity interest in the applicant as their employer, and you know the proceeding would have a reasonably foreseeable, material financial effect on that business entity interest given the fact that the employer is the applicant in the proceeding.
Business Entity Example 2
Continuing the above example, another person stands up at the City Council meeting and provides public comment, stating, “I’m a licensed electrician and I think a development project of this size would bring a lot of valuable jobs to local tradespeople like me.” The person has indicated they have a business entity interest in their business as an electrician and has also indicated the project would potentially benefit their business, but has not provided any facts indicating their business could benefit, for example, by $1,000,000 or result in an increase of five percent of annual gross revenue and at least $10,000. Because of the general facts provided, you would not have reason to know that the individual has a financial interest in the proceeding.
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c. Real Property Interests in the Proceeding.
When considering the materiality of a financial effect on real property not explicitly involved in a governmental decision, the proximity of the participant’s real property to the real property at issue in the decision is of particular importance. Are you aware of any of the following concerning the participant’s real property - is it:
· Within 500 Feet: from the subject property of a governmental decision and there is no “clear and convincing evidence” the decision will have no measurable impact on the participant’s property.
· Between 500 and 1,000 Feet: from the subject property of a governmental decision and the decision would change the parcel’s:
o Development potential;
o Income producing potential;
o Highest and best use;
o Character by substantially altering traffic levels, intensity of use, parking, view, privacy, noise levels, or air quality; or
o Market value.
However, if you are aware that the participant’s real property is:
· Over 1,000 Feet: from the subject property of a governmental decision the decision is presumed to not have a reasonably foreseeable, material financial effect on the individual’s real property absent “clear and convincing evidence” of a substantial effect on the participant’s property.
Note: You are not considered to “know” or “have reason to know” of a participant’s financial interest in a decision solely as a result of the participant identifying an economic interest located in the general vicinity of a business entity or real property at issue in the proceeding.
Real Property Example 1
An individual provides public comment at a City Council meeting opposing a development project because of the effect they believe the project will have on nearby residences and notes, “I live near this project.” Based solely on these comments, you would not know or have reason to know whether the individual has a real property interest within 500 or 1,000 feet or further away from the project.
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If you are aware or the individual mentions they have a leasehold interest in real property, they will have a financial interest if the decision would: (1) Change the termination date of the lease; (2) Increase or decrease the potential rental value of the property; (3) Change the person’s use of the property; or (4) Impact the use and enjoyment of the property. A month-to-month tenancy is not a “real property interest” under the Act.
Note: There are certain exceptions applicable to determining a material interest in real property, such as when the proceeding includes a decision that solely concerns repairs/maintenance or replacement of existing streets, water, sewer, storm drainage or similar facilities. (For decisions relating the adoption or amendment of a General Plan, please consult Regulation 18702.2(d)(2) or seek further advice.) d. Source of Income Interests
Generally, a participant’s financial interest in a source of income not explicitly involved in the decision, will only become apparent if they reveal facts indicating any of the following and the source is a:
· Business Entity: Apply the standards discussed above for determining a material financial effect on business entity interests. · Nonprofit Organization: Apply the same standards discussed above use for determining a material financial effect on a business entity. · Individual:
o Personal Finances: The decision may affect the individual’s income, investments, assets, or liabilities by $1,000 or more;
o Impact on Business: The participant knows or has reason to know the individual has an interest in a business entity that will be materially financially affected under the standards pertaining to business entity interests, described above;
o Impact on Real Property: The participant knows or has reason to know the individual has an interest in real property and the property is a named party in, or the subject of the decision, or there is clear and convincing evidence the decision would have a substantial effect on the property.
Real Property Example 2
If, however, the individual said, “I live within 100 yards,” or “I live directly across the street” from the project, you would be aware that the individual lives within 500 feet of subject property and unless there are clear facts that the decision would have no measurable impact on her property, the Section 84308 requirements and prohibitions will apply to this person as a participant.
Fair Political Practices Commission 17 Officers and Section 84308 October 2023
“Nexus” Test: The governmental decision is also considered to have a reasonably foreseeable, material financial effect if it would achieve, defeat, aid, or hinder a purpose or goal of the source of income and the participant or their spouse receives or is promised the income for achieving the purpose or goal. e. Source of Gift Interests
Generally, a participant’s financial interest in an individual as a source of gift not explicitly involved in a governmental decision will only become apparent if they reveal facts indicating any of the following:
· Business Entity: Apply the standards discussed above for determining a material financial effect on business entity interests. · Nonprofit Organization: Apply the same standards discussed above for determining a material financial effect on a business entity. · Individuals:
o The individual’s personal finances will be materially impacted, as described in the “Personal Finances” section below;
o The participant knows or has reason to know the individual has an interest in a business entity or real property that will be materially financially affected under the standards pertaining to business entity or real property interests, described above;
o The participant knows or has reason to know the individual has an interest in real property and the property is a named party in, or the subject of the decision, or there is clear and convincing evidence the decision would have a substantial effect on the property.
f. Personal Finances
In general, a governmental decision’s reasonably foreseeable financial effect on a participant’s personal finances or the finances of the participant’s immediate family is material if the decision may result in the participant or participant’s immediate family member receiving a financial benefit or loss—other than a financial impact on a Source of Income Example
At a City Council meeting, a member of the public provides comment and states, “I work for the Downtown Business Chamber of Commerce and my job is to bring business to Downtown and help revitalize the Downtown area economy. Approval of this project would do just that.” Based on the person’s comments, you know it is reasonably foreseeable the proceeding would have material financial effect on the person’s source of income—the Downtown Business Chamber of Commerce—based on the nexus between the governmental decisions at issue and the Chamber of Commerce’s goals that the speaker is paid to achieve. The Section 84308 requirements and prohibitions would apply to this participant.
Fair Political Practices Commission 18 Officers and Section 84308 October 2023
business entity or real property interest—of $500 or more in any 12-month period due to the decision. This does not apply if the decision’s financial impact would affect the participant’s economic interest in a business entity or real property, as such financial effects are considered separately under the standards discussed above.
F. HAVE I “WILLFULLY OR KNOWINGLY” RECEIVED A
$250 OR GREATER CONTRIBUTION FROM A PARTY,
PARTICIPANT, OR AGENT WITHIN THE PAST 12
MONTHS?
1. Knowledge of a Contribution
As an officer, you are considered to have “willfully or knowingly” received a contribution under any of the following circumstances:
· Actual knowledge: You have actual knowledge of the contribution; · Disclosure by the Party: The contribution has been disclosed by the party pursuant to Section 84308(e) and Regulation 18438.8; or · Other Reasons to Know: You are aware of facts including, but not limited to:
o The party, participant, or another person has otherwise informed you that a contribution or contributions have been made to you;
o The party or participant has previously made two or more contributions of more than $250 to you;
o You personally solicited the party or participant for a contribution; or o You personally accepted a contribution from the party or participant. · Relevance of Prior Campaign Reporting: Note that the fact that a contribution was previously included in a campaign report filed by your campaign committee does not constitute “reason to know” of a party’s or participant’s contribution except in the following circumstances:
o The party’s proceeding has also been noticed on an agenda for a public meeting before the body or board of which you are a member or, o For officers not on a body or board, the proceeding is before you in your decision-making capacity.
Fair Political Practices Commission 19 Officers and Section 84308 October 2023
2. How is the $250 Calculated?
In determining whether you have received a contribution of more than $250 from a party, participant, or agent, consider the following:
· Aggregation: To determine whether you have received a contribution of more than $250 from a party or participant or their respective agent during a 12-month period, you must aggregate all of the following:
o All contributions made by the party or by the participant; with o All contributions made by the party’s agent or the participant’s agent during the shorter of: (A) The previous 12-month period; or (B) The period beginning on the date the party or participant first hired the agent as either a paid employee, contractor, or consultant; and
o All contributions made by an individual, other than an uncompensated officer of a nonprofit organization, or entity required to be aggregated with the party or participant and any agent of the party or participant under Section 82015.5 (see discussion below) of the Political Reform Act.
Exception: Although the above contributions generally must be aggregated for purposes of determining whether you have received a contribution exceeding $250, you do not have reason to know about a contribution from an individual or entity required to be aggregated with contributions by a party, participant, or agent—and you do not violate Section 84308 as a result of the contribution—if, at the time of the potential violation, both the following criteria are met:
(1) The party, participant, or agent has not disclosed the contribution on the record of the proceeding; and
(2) You do not otherwise know facts establishing that the contribution must be aggregated pursuant to Section 82015.5 and Regulation 18438.5.
Campaign Reporting Example
You are a City Councilmember. A development project application is included on the agenda for the next City Council meeting. The applicant has failed to disclose the $300 contribution he made to your campaign committee eight months ago, in violation of Section 84308. (Where the contribution is made prior to the proceeding, the party must disclose the contribution at the time of filing the application.) The project application was included on the City Council meeting agenda. The $300 contribution was included in a campaign report filed by your campaign committee. Accordingly, at the point the project application appears on the City Council meeting agenda, you have reason to know about the developer’s $300 contribution—even though the applicant did not disclose it in their initial application—and you must either recuse yourself from the proceeding or return the amount exceeding the $250 contribution limit.
Fair Political Practices Commission 20 Officers and Section 84308 October 2023
Section 82015.5
Section 82015.5 provides:
· If an individual directs or controls an entity’s contributions, the entity’s contributions shall be aggregated with contributions made by both of the following:
o That individual.
o Any other entity whose contributions that individual directs or controls.
· If two or more entities make contributions that are directed or controlled by a majority of the same persons, the contributions of those entities shall be aggregated.
· Contributions made by entities that are majority owned by a person shall be aggregated with the contributions of the majority owner and all other entities majority owned by that person, unless those entities act independently in their contribution-making decisions.
In practice, Section 82015.5’s aggregation rules will most frequently come into play when you have received a contribution from a party or participant, as well as a contribution from a business owned by the party or participant or from a parent/subsidiary/sister corporation of the party or participant.
Note: In general, a spouse of a party or participant is not also considered a party or participant and, therefore, contributions by a spouse are not aggregated with contributions by the party or participant. The two scenarios in which contributions by a spouse are aggregated with contributions by the party or participant are where:
(1) The proceeding involves real property or a business interest that is owned jointly by the spouses; or
(2) The spouse is acting as the agent of their party or participant spouse.
Fair Political Practices Commission 21 Officers and Section 84308 October 2023
Aggregation Example 1
A proceeding is on the agenda for the next public meeting of the governmental board you are a member of. You check whether the party involved has contributed to any of your controlled committees within the past 12 months and see that the party contributed $200 six months ago. No other contributions have been disclosed by the party or the party’s agent. Accordingly, you take part in the proceeding at the public meeting.
After the meeting, you learn that the party owns a company that also contributed $200 to your committee six months ago, for an aggregate total contribution of $400 within the past six months. Because the party and the party’s agent did not disclose the contribution by the party’s company and you did not know facts establishing that the contribution by the party’s company needed to be aggregated with the party’s contribution—i.e., you did not know of the connection between the party and the company—your participation in the proceeding was not a violation of Section 84308.
Aggregation Example 2
Using the above example, suppose that during the course of the meeting—after you have already begun participating—the party discloses that their company contributed $200 to your committee six months ago. At that point, you would know facts establishing that the contributions need to be aggregated and would amount to more than $250 within the past 12 months. Your continued participation in the proceeding would be a violation of Section 84308, unless you disclosed on the record of the proceeding the fact that the contributions were disqualifying and confirmed you would return the disqualifying portion of the contribution within 30 days and subsequently did, in fact, return the disqualifying portion of the contribution.
Fair Political Practices Commission 22 Officers and Section 84308 October 2023
G. CAN I RETURN A CONTRIBUTION?
Under Section 84308, you are permitted to return a contribution that would otherwise disqualify you from an entitlement for use proceeding if you return the contribution within 30 days from the time you know, or should have known, about the contribution and the proceeding. You are permitted to make such a return if:
(1) The contribution was received from a party prior to you knowing or having reason to know that a proceeding involving the party had commenced. For purposes of this provision, if you serve on a governing body or board, you are considered to know or have reason to know a proceeding involving the party has commenced if the proceeding has been noticed on the agenda for a public meeting of the board; or
(2) The contribution was received from a participant prior to you knowing or having reason to know that the participant had a financial interest in the proceeding.
If you are serving on a governing body or board and would otherwise be disqualified under Section 84308 from taking part in a proceeding, you may take part in the proceeding prior to returning the contribution if all the following criteria are met:
(1) The decision is made at a public meeting of the governing body or board; (2) You have known or should have known about the contribution and proceeding for fewer than 30 days;
(3) After learning of the contribution or proceeding and prior to taking part in any further discussion or decision, you disclose the fact of the disqualifying contribution on the record of the proceeding, as required by Section 84308(c), and confirm that the return will occur within 30 days from the time you knew, or should have known, about the contribution and proceeding; and
(4) The contribution is returned within that timeframe.
Return of Contribution Example
You are a member of the City Council. At a public meeting held on March 11, the City Council will consider a proposed development agreement. The developer donated $300 to your campaign committee six months ago. You learned about the proceeding when the meeting agenda was published 10 days ago, on March 1. At the beginning of the meeting, you disclose the contribution over $250 from the developer within the preceding 12 months, but state that you will return the disqualifying portion by March 31—30 days after you first knew, or should have known, about the contribution and proceeding. You may then take part in the proceeding without violating Section 84308 as long as the disqualifying portion is, in fact, returned by March 31.
Fair Political Practices Commission 23 Officers and Section 84308 October 2023
H. FREQUENTLY ASKED QUESTIONS
1. Is my local government position covered under Section 84308? Under Section 84308, “officer” means “any elected or appointed officer of an agency, any alternate to an elected or appointed officer of an agency, and any candidate for elective office in an agency.” This includes local government positions.
The only officials Section 84308’s requirements do not apply to are officials in the judicial branch, the Legislature, Board of Equalization, and constitutional officers.
2. What if I am an officer in the midst of a proceeding and the individual testifying in support of a project discloses they made a $300 contribution to my campaign and states they live “in the neighborhood near the project site.” Do I have “reason to know” that the individual has a financial interest in a proceeding so that they qualify as a “participant” for disclosure and recusal purposes? You must consider your knowledge and the specific facts provided. An officer does not know of a participant’s financial interest in a decision solely as a result of the participant identifying an economic interest located in the general vicinity of a business entity or real property at issue in the proceeding.
If, after considering the specificity of the facts provided, you are not certain, you should either:
(A) In an abundance of caution, recuse yourself from the proceeding until you can determine with certainty that the individual does not constitute a participant in the proceeding; or
(B) Not recuse, but follow the steps in the meeting for returning the disqualifying portion of the contribution received from the individual, including disclosing the contribution, pledging to return the disqualifying amount within the relevant timeframe, and then doing so. If the appropriate steps for the return of a contribution are completed, your continued participation in the proceeding does not constitute a violation of Section 84308.
As an officer, you are required to consider all relevant facts known by you at the time of the decision in determining whether the facts revealed by a person have made a financial interest apparent. You should familiarize yourself with the relevant “reasonable foreseeability” and “material financial effect” standards discussed in this document, as well as available on the FPPC website at https://fppc.ca.gov/learn/conflicts-of-interestrules.html and https://fppc.ca.gov/the-law/fppc-regulations/regulations-index.html (Regulations 18701 and 18702.1-18702.5). If you are uncertain whether the facts known by you make a person’s financial interest apparent, you may wish to seek advice from agency counsel or the FPPC.
Fair Political Practices Commission 24 Officers and Section 84308 October 2023
3. Other than being made “orally,” “in writing,” or “on the record,” what form must disclosure take?
Neither Section 84308 nor its related regulations specify the exact form disclosure must take beyond the requirements discussed in the “Disclosure” section above. Given the wide variety of agencies and jurisdictions Section 84308 applies to, disclosure may take different forms. For example, one agency may decide to include all relevant disclosures in writing as part of the meeting agenda, while another agency may choose to have agency counsel make a disclosure on an officer’s behalf and have the disclosure included in the meeting minutes. As long as a record of the disclosure is maintained by the agency and may be accessed by the public, the agency may decide on its preferred process for disclosure.
4. I am a candidate for office but I am not currently an officer of an agency.
Am I prohibited from accepting, soliciting, or directing a contribution from a party or participant involved in a proceeding before the agency the candidate is campaigning for office in?
No. A candidate for office who does not hold any other governmental position does not meet the definition of “officer of an agency” and therefore is not prohibited from accepting, soliciting, or directing such contributions from a party, participant, or agent, but may be prohibited from taking part in a proceeding involving the party, participant, or agent once elected if they have received a contribution of more than $250 within the preceding 12 months.
5. I am a candidate for a school board position and I am an employee of the County Planning permit department. Am I subject to Section 84308 due to my employment given that a building application does not in any way relate to a school board position?
Yes. You are subject to Section 84308. The office a candidate is running for does not need to relate to the entitlement for use proceeding in order for Section 84308 to apply.
6. Is a “strong mayor” with veto power over city council decisions permitted to exercise that veto power—even when the mayor has received ordinarily disqualifying contributions of more than $250 from a party, participant, or agent thereof—on the basis of “legally required participation”? Yes. Because a “strong mayor” is legally required to exercise the powers and fulfill the duties authorized by a city charter and, to the extent the city charter authorizes a mayor to take part in an entitlement for use proceeding, conduct that would ordinarily disqualify a mayor under Section 84308 does not prohibit the mayor from participating. (Granda Advice Letter, No. I-23-102.)
However, the legally required participation exception does not excuse other violations of Section 84308 and a strong mayor taking part in an entitlement
Fair Political Practices Commission 25 Officers and Section 84308 October 2023
proceeding pursuant to the exception is still required to refrain from soliciting, directing, or receiving contributions from parties/participants while the proceeding is pending and for 12 months thereafter, and must also make all necessary disclosures.
7. Are personal contributions from members of a governmental board in their individual capacity considered contributions “from the governmental board”? Do the contributions need to be aggregated?
No. Contributions made in the member’s personal capacity, are not considered contributions from the governmental board and are not aggregated with contributions made by other members of the body or board made in their personal capacities.
8. May I accept, solicit, or direct contributions exceeding $250 from an unpaid, volunteer officer of a non-profit organization, if the organization is a party, participant, or agent in the proceeding?
Yes. Contributions from an uncompensated officer of a non-profit organization are not aggregated with contributions by the non-profit organization, given that the uncompensated officer does not have a financial interest in the proceeding. The nonprofit organization is not a “business entity” and it is not a “source of income “ to the volunteer officer.
9. I am an elected local officer. Can I be disqualified from taking part in an entitlement for use proceeding based on contributions the officer received in 2022, within 12 months of the proceeding?
No. Under Regulation 18438, Section 84308’s provisions, as amended by SB 1439 and effective as of January 1, 2023, do not apply to contributions received prior to that date. If Section 84308 did not apply to you before January 1, 2023, contributions you received and proceedings you participated in prior to that date do not implicate Section 84308.
10. Does the $250 limit apply to each candidate or each committee? For example, can a party donate $250 to two committees controlled by the same officer?
The $250 limit applies to each candidate, not each committee, such that a party, participant, or agent may not donate more than $250 across all of an officer’s controlled committees.
11. A business contributed more than $250 to my campaign a few months ago.
Now an employee of the business is coming before my agency in their personal capacity, applying for a building permit to remodel their home. Am I disqualified from the proceeding based on the business’s $250+ contribution? Generally, no. In the described circumstances, the employee would be the party in the proceeding, while the business would not be a party or agent of the employeeparty. Assuming the business is not structured in such a way that the “employee” is, in
Fair Political Practices Commission 26 Officers and Section 84308 October 2023
fact, the majority owner of the company or directs or controls the company’s contributions, the contributions made by the company would not be aggregated with contributions made by the employee. Therefore, the officer who received a $250+ contribution from the company would not be disqualified from the proceeding.
12. Are project labor agreements establishing the terms and conditions of employment for workers on certain projects considered exempt “labor contracts” under Section 84308?
Yes. A “labor contract” is defined as “a contract or agreement reached through collective bargaining or with a representative group regarding the salary, benefits, or terms and conditions under an employment or retirement policy for employees or retirees, including a project labor agreement entered into under Public Contract Code Section 2500.”
13. If a union representative provides public comment in support or in opposition of a governmental decision and indicates the decision will have a financial impact on its members, is the union considered a “participant”? Only if the union organization itself has a financial interest under the standards applicable to a nonprofit organization. To be a “participant,” a person (including a nonprofit organization) must have a financial interest in the proceeding. A nonprofit organization such as a union does not necessarily have a financial interest in a proceeding solely because it would be beneficial to the organization’s members.
The relevant standards for determining a reasonably foreseeable, material financial effect on a nonprofit organization, such as a union, are:
· Change in Receipts: The decision may result in an increase or decrease of the organization's annual gross receipts, or the value of the organization's assets or liabilities, in an amount equal to or more than: $1,000,000; or five percent of the organization's annual gross receipts and the increase or decrease is equal to or greater than $10,000.
· Change in Expenses: The decision may cause the organization to incur or avoid additional expenses or to reduce or eliminate expenses in an amount equal to or more than: $250,000; or one percent of the organization's annual gross receipts and the change in expenses is equal to or greater than $2,500. · Impact on Real Property: The official knows or has reason to know that the organization has an interest in real property and: the property is a named party in, or the subject of, the decision; or there is clear and convincing evidence the decision would have a substantial effect on the property.
Accordingly, unless it is reasonably foreseeable that a nonprofit organization would experience any of the above financial effects (e.g., the union’s receipt of union dues increases by $1,000,000 as a result of the increased union wages caused by a government contract), the nonprofit organization will not qualify as a “participant” and an
Fair Political Practices Commission 27 Officers and Section 84308 October 2023
officer is not prohibited from receiving more than $250 from the organization advocating for or against a particular decision in an entitlement proceeding.
City Council Agenda Report
Agenda Item No. 9.d.
DATE: February 13, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Masami Higa, Director of Finance
SUBJECT: CONSIDERATION AND APPROVAL OF RESOLUTION NO.
24-127, APPROVING A LICENSE AGREEMENT WITH VACCO
INDUSTRIES FOR PARKING SPACES AT 1530 CENTRAL
AVENUE, SOUTH EL MONTE, CALIFORNIA
SUMMARY: Consideration and approval of a license agreement for leasing parking spaces to Vacco Industries.
RECOMMENDED ACTION: Staff Recommends City Council:
1. Adopt Resolution No. 24-127, approving a license agreement for leasing parking spaces to Vacco Industries; and
2. Authorize the City Manager to execute agreement.
ENVIRONMENTAL ANALYSIS: This action proposed herein is not a project subject to the California Environmental Quality Act (CEQA) in accordance with Section 21065 of CEQA and State CEQA Guidelines Sections 15060(c)(2), 15060(c)(3), and 15378.
Entering into a lease agreement for parking spaces is an administrative action that would not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. Therefore, the proposed action is not a “project” subject to CEQA, as defined in Section 21065 of CEQA and Section 15378 of the State CEQA Guidelines. Since the action is not a project subject to CEQA, no environmental document is required.
FISCAL/FINANCIAL IMPACT: The licensee, or Vacco Industries, Inc., shall pay the City an annual license fee of five hundred dollars ($500.00) per year over the term of the license agreement as shown below. Also, Vacco has agreed to support the South El Monte Chamber of Commerce's Annual State of the City Event over the term of its license agreement as follows:
Year 1 Year 2 Year 3 Year 4 Year 5
Parking Fee $500 $500 $500 $500 $500
Sponsorship for
State of the City
Event
$6,000 $6,000 $6,000 $6,000 $6,000
Additional
Sponsorship $4,000 $0 $0 $0 $0
Total $10,500 $6,500 $6,500 $6,500 $6,500
DISCUSSION: As part of the City's economic development program, the City has executed agreements with local businesses which allowed them to use City parking facilities for expansion of their workforce. For example, agreements have been made in the past with Lee Pharmaceuticals to utilize the New Temple Park's parking lot, and Vacco Industries, and Sierena, Inc. to utilize the Civic Center parking lot.
Vacco Industries is currently expanding its facilities and is again requesting to use part of the Civic Center parking lot. The draft agreement and map depicting the area under consideration are attached for City Council's review and consideration. The license agreement provides Vacco Industries the use of 50 parking spaces over a term of five (5) years. The City is currently completing the pavement of the Kruse property located at 1459 Santa Anita Avenue, South El Monte, California 91733, and estimates an additional 50 parking spaces to become available once completed, hence any overflow parking from the Civic Center is expected to migrate into the Kruse property as needed.
The action proposed herein is not a project subject to the California Environmental Quality Act (CEQA) in accordance with Section 21065 of CEQA and State CEQA Guidelines Sections 15060(c)(2), 15060(c)(3), and 15378. Entering into a lease agreement for parking spaces is an administrative action that would not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. Therefore, the proposed action is not a “project” subject to CEQA, as defined in Section 21065 of CEQA and Section 15378 of the State CEQA Guidelines. Since the action is not a project subject to CEQA, no environmental document is required.
ATTACHMENT(S):
A. VACCO Industries Inc. Parking License Agreement
B. Resolution No. 24-127
01257.0001/957677.6 Page 1 of 11
ATTACHMENT A
PARKING LICENSE AGREEMENT BETWEEN
THE CITY OF SOUTH EL MONTE AND VACCO INDUSTRIES
This Parking License Agreement (“Agreement”) is made as of February 14, 2024 (“Effective Date”) by and between the CITY OF SOUTH EL MONTE, a municipal corporation (“City”) and VACCO INDUSTRIES, a California corporation (“Licensee”). City and Licensee are at times referred to herein individually as “Party” and collectively as “Parties.”
RECITALS
A. City owns that certain real property located at 1530 Central Avenue in the City of South El Monte, County of Los Angeles, State of California, which is the location of the South El Monte Civic Center (the “Property”).
B. Licensee operates a business located at 10350 Vacco Street in the City of South El Monte, County of Los Angeles, State of California.
C. Licensee has requested the right to use that certain portion of the Premises consisting of a parking lot.
D. City recognizes that the Licensee’s operations are beneficial to the South El Monte community as a whole.
E. City, in general, encourages businesses to remain and expand their operations within South El Monte.
F. This Agreement supersedes any and all prior agreements, verbal and written, between the Parties.
G. For good and valuable consideration, receipt of which is acknowledged hereby, City is willing to permit Licensee to use the Premises for parking purposes pursuant to the terms and conditions set forth in this Agreement, and in recognition of the beneficial work performed by the Licensee.
AGREEMENT
1. PARTIES. This License Agreement ("Agreement") is made by and between the CITY OF SOUTH EL MONTE ("City"), a municipal corporation and VACCO INDUSTRIES ("Licensee") a California corporation.
2. PREMISES. For and in consideration of the fees, covenants, and conditions set forth herein, City hereby grants to Licensee the exclusive right to use fifty (50) parking spaces as depicted on the map at Exhibit “A” (the “Premises"), located in the parking lot of the South El Monte Civic Center (the “Property”), 1530 Central Avenue, South El Monte, California 91733, as shown in the map attached as Exhibit A, during the hours of 5:00 a.m.
01257.0001/957677.6 Page 2 of 11
to 6:00 p.m. seven (7) days a week, during the term of this Agreement. Licensee shall also have the non-exclusive right to use all common entrances and driveway areas for access to the Premises. Except as specifically stated in this Agreement, City makes no warranties or representations regarding the condition of the Premises. Licensee shall take possession of the Premises on the date the term commences in their then "as is" condition. The Premises shall be marked by signage labeled “Reserved for Vacco Industries” or similar language and/or marked with distinguishable parking stripes or similar markings. Cost of any such signage shall be the responsibility of the Licensee, and must be approved by the City before being placed at the Premises.
3. TERM. The term of this Agreement ("Term") shall be five (5) years, commencing on February 14, 2024, ("the Commencement Date"); provided, however, that either party may elect at any time to terminate this Agreement, effective at the end of a calendar month, upon not less than thirty (30) days written notice to the other party.
4. LICENSE FEE. Licensee shall pay the City an annual license fee of five hundred dollars ($500.00) per year over the term of the license agreement.
Year 1 Year 2 Year 3 Year 4 Year 5
Parking Fee $500 $500 $500 $500 $500
Sponsorship for State-of-the-City Luncheon $6,000 $6,000 $6,000 $6,000 $6,000 Additional sponsorship $4,000 $0 $0 $0 $0
Total $10,500 $6,500 $6,500 $6,500 $6,500
5. USE. Licensee agrees to use the Premises for the parking of automobiles of its employees only, and for no other use. Licensee will not permit its customers, guests, or invitees onto the Premises. Licensee will not wash or service vehicles on or about the Premises.
6. ALTERATIONS AND IMPROVEMENTS. Licensee shall not construct any fences, structures, or improvements on the Premises. Notwithstanding such prohibition, in the event Licensee alters or improves the Premises, all such improvements shall become the property of the City at the time of such construction or placement and shall remain the property of the City after termination or expiration of this Agreement, unless City elects to require Licensee to remove such improvements and restore the Premises to the condition existing prior to the presence of any alterations or improvements as herein provided.
7. MAINTENANCE. Licensee shall maintain the Premises in its “as is” condition on the date the term of the Agreement commenced. In the event City alters or improves the Premises (e.g., resurfacing), Licensee shall maintain the Premises in its altered and/or improved condition. Licensee shall reimburse City within ten (10) days after written
01257.0001/957677.6 Page 3 of 11
demand for reimbursement of City's costs of repairing damage caused by any negligent act or omission solely caused by Licensee or its employees, agents, contractors, or invitees.
8. USES PROHIBITED. Licensee shall not use or allow the Premises to be used for any improper, immoral, unlawful, or objectionable purpose; nor shall Licensee cause, maintain or permit any nuisance in, on or about the Premises.
Licensee shall not cause or knowingly permit any Hazardous Substances (as defined below) to be used, stored, generated, or disposed of on or in the Premises by Licensee, Licensee's agents, employees, contractors, or invitees. If Hazardous Substances are used, stored, generated, or disposed of on or in the Premises except, or if the Premises become contaminated in any manner for which Licensee is legally liable, Licensee shall indemnify and hold harmless City from any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses (including without limitation, a decrease in value of the Premises, damages caused by loss or restriction of rentable or usable space, or any damages caused by adverse impact on marketing of the space, and any and all sums paid for settlement of claims, attorney's fees, consultant, and expert fees) arising during or after the Term of this Agreement and arising as a result of that contamination. This indemnification includes, without limitation, any and all costs incurred because of any investigation of the site or any cleanup, removal, or restoration mandated by a federal, state, or local agency or political subdivision. Without limitation of the foregoing, if Licensee causes or knowingly permits the presence of any Hazardous Substance on the Premises which results in contamination, Licensee shall promptly, at Licensee's sole expense, take any and all necessary actions to return the Premises to the condition existing prior to the presence of any such Hazardous Substance on the Premises. Licensee shall first obtain City's approval for any such remedial action. The provisions of this paragraph shall be in addition to any other obligations and liabilities Licensee may have to City at law or equity and shall survive the expiration or the termination of this Agreement.
For purposes of this Agreement, the term "Hazardous Substance" means any substance that is toxic, ignitable, reactive, or corrosive and that is regulated by any local government, the State of California, or the United States Government. "Hazardous Substance" includes without limitation any and all materials or substances that are defined by Law as ''hazardous waste", "extremely hazardous waste", or a ''hazardous substance". "Hazardous Substance" includes but is not limited to asbestos, polychlorobiphenyls ("PCBs"), and oil, petroleum and their by-products.
Notwithstanding anything herein to the contrary, Licensee shall not be liable for the costs of removing or remediating any Hazardous Substances which migrate or are brought onto the Premises from another location without the knowledge, permission or fault of Licensee or Licensee's employees.
9. ASSIGNMENT AND SUBLETTING. Licensee shall not, either voluntarily or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Agreement or any interest herein, or any right or privilege appurtenant hereto, or allow any other person to occupy or use the Premises, or any portion thereof. Any such assignment
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or subletting shall be null and void, and shall, at the option of City, constitute a breach and/or default under this Agreement.
10. INDEMNIFICATION. Licensee shall indemnify and hold harmless City, the City Council and each member thereof, and City's officers, employees and agents (all collectively referred to as "Indemnitees") from and against any and all claims arising from Licensee's or Licensee's officers', employees', agents', invitees' or guests' rise of the Premises or from the conduct of its business or from any activity, work, or other things done, permitted or suffered by Licensee on or about the Premises, including but not limited to claims arising from theft, vandalism, destruction, damage or burglary of vehicles, or any personal property contained therein. Licensee shall further indemnify and hold harmless Indemnitees from and against any and all claims arising from any breach or default in the performance of any obligations on Licensee's part to be per- formed under the terms of this Agreement, or arising from any act or negligence of the Licensee, or any officer, agent, employee, guest, or invitee of Licensee, and from all reasonable and actual costs, attorney's fees, and liabilities incurred in or about the defense of any such claim or any action or proceeding brought thereon. If any action or proceeding be brought against Indemnitees by reason of any such claim, Licensee, upon notice from Indemnitees, shall defend Indemnitees at Licensee's expense, by counsel reasonably satisfactory to Indemnitees.
Licensee, as a material part of the consideration of City, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises, from any cause except City's sole active negligence or intentionally wrongful acts; and Licensee hereby waives all claims-in respect thereof against City. Licensee shall give prompt notice to City in case of casualty or accident on the Premises. City or its agents shall not be liable for any loss or damage to persons or property resulting from fire, explosion, earthquake, flood, or any other cause except City's sole active negligence or intentionally wrongful acts.
11. INSURANCE.
11.1 Insurance Coverages. Without limiting Licensee’s indemnification of City, and prior to commencement of any services under this Agreement, Licensee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.
11.2 General liability insurance. Licensee shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
11.3 Automobile liability insurance. Licensee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Licensee arising out of or in connection with Services to be performed under this Agreement, including coverage for any
01257.0001/957677.6 Page 5 of 11
owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 limit for each accident.
11.4 Workers’ compensation insurance. Licensee shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
11.5 Subcontractors. Licensee shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein.
11.6 Proof of insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
11.7 Duration of coverage. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants.
11.8 Primary/noncontributing. Coverage provided by Licensee shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
11.9 City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Licensee or City will withhold amounts sufficient to pay premium from Licensee payments.
In the alternative, City may cancel this Agreement.
11.10 Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial
01257.0001/957677.6 Page 6 of 11
Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
11.11 Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
11.12 Enforcement of contract provisions (non-estoppel). Licensee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Licensee of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
11.13 Requirements not limiting. Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance.
Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Licensee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Licensee.
Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
11.14 Notice of cancellation. Licensee agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
11.15 Additional insured status. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
11.16 Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
11.17 Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Licensee’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
11.18 Pass through clause. Licensee agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto
01257.0001/957677.6 Page 7 of 11
or involved in the project by Licensee, provide the same minimum insurance coverage and endorsements required of Licensee. Licensee agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Licensee agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review.
11.19 Agency’s right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Licensee ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Licensee, the City and Licensee may renegotiate Licensee’s compensation.
11.20 Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
11.21 Timely notice of claims. Licensee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Licensee’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
11.22 Additional insurance. Licensee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
12. COMPLIANCE WITH LAW. Licensee agrees to comply with all existing and future ordinances, rules, laws, or regulations which are applicable to the Premises or the operations of Licensee on the Premises.
13. REMEDIES ON DEFAULT. In the event of any default or breach by Licensee, City may at any time thereafter, in its sole discretion, with or without notice or demand and without limiting City in the exercise of a right or remedy which City may have by reason of such default or breach: (a) Terminate Licensee's right to use the Premises by any lawful means, in which case this Agreement shall terminate, and Licensee shall immediately surrender use of the Premises to City. In such event City shall be entitled to recover from Licensee all damages incurred by City by reason of Licensee's default including, but not limited to, the cost of recovering possession of the Premises and necessary repair of damage to the Premises; reasonable attorney's fees; or (b) Pursue any other remedy now, or hereafter available to City under the laws of the State of California.
14. EMINENT DOMAIN. If all or any portion of the Premises shall be taken or appropriated by any authority under the power of eminent domain, this Agreement shall terminate on the date of taking, and City shall be entitled to any and all awards and/or settlements which may be given and Licensee shall have no claim against City for the value of any unexpired Term of this Agreement.
15. NOTICE. All notices to City shall be in writing and delivered to CITY OF SOUTH EL MONTE, 1415 Santa Anita Avenue, South El Monte, California 91733, Attn: City
01257.0001/957677.6 Page 8 of 11
Manager, or at such other address or to such other persons as City may from time to time designate in writing. A copy of all notices shall also be delivered to ALESHIRE & WYNDER, LLP, 1 Park Plaza Unit 1000, Irvine, California 92614, Attn: Anthony Taylor, City Attorney. All notices given by City to Licensee hereunder shall be in writing and delivered to Licensee at Vacco Industries 10350 Vacco Street, South El Monte, California 91733, Attn: Edmundo Hernandez, or at such other addresses or to such other persons as Licensee may from time to time designate in writing. All notices shall be deemed received upon manual delivery to such addresses or upon receipt (or rejection by the addressee) if mailed via pre-paid, certified mail, return receipt requested.
16. SUCCESSORS. Each and every one of the terms, covenants, and conditions of this Agreement shall inure to the benefit of and shall bind, as the case may be, not only the parties hereto but each and every one of the heirs, executors, administrators, successors, assigns, and legal representatives of the parties hereto.
17. SURRENDER. At the expiration or termination of the Term, Licensee shall surrender the Premises to City in the same condition as received, reasonable wear and tear excepted, and all structures and improvements constructed thereon.
18. GENERAL PROVISIONS.
18.1 Prior Agreements. This Agreement contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Agreement, and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. No provisions of this Agreement may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. This Agreement shall not be effective or binding on any party until fully executed by both parties hereto.
18.2 Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity.
18.3 Municipal Events. From time to time, City may suspend Licensee's rights and privileges for use of the Premises, at City's sole discretion, when the Premises are needed for municipal special events. If City invokes this provision, City shall provide Licensee with not less than five (5) days written notice.
18.4 Redesignation of the Premises. The City reserves the right to redesignate the Premises to the Kruse Property located at 1459 Santa Anita Avenue, South El Monte, California 91733, at the City’s sole discretion, when necessary. If the City invokes this provision, City shall provide Licensee with not less than five (5) days written notice.
18.5 Authority of Licensee. If Licensee is a corporation, each individual executing this Agreement on behalf of the corporation represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of the corporation,
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in accordance with the bylaws of the corporation, and that this Agreement is binding upon the corporation.
18.6 Governing Law and Forum. This License shall be governed by and construed in accordance with the internal laws of the State of California any litigation with respect to this License shall be conducted in the County of Los Angeles, State of California.
18.7 Entire Agreement. This Agreement contains the entire agreement between the parties hereto, and no addition or modification of any terms or provisions shall be effective unless set forth in writing, signed by both Licensor and Licensee.
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IN WITNESS WHEREOF, this Agreement has been executed the day and year first above set forth.
CITY OF SOUTH EL MONTE, a California municipal corporation ___________________________________
Rene Salas, City Manager
APPROVED AS TO FORM
___________________________________
Anthony R. Taylor, City Attorney
VACCO INDUSTRIES, a California Corporation
By: _______________________________
[Name, Title]
By::_______________________________
[Name, Title]
If applicable, two corporate officer signatures required when Contractor is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR’S SIGNATURES SHALL BE DULY
NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY
BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR’S BUSINESS ENTITY
01257.0001/957677.6 Page 11 of 11
Exhibit “A”
[Map Depicting the Location of 50 Parking Spaces]
01257.0001/957786.2
ATTACHMENT B
RESOLUTION NO. 24-127
A RESOLUTION OF THE SOUTH EL MONTE CITY
COUNCIL APPROVING A LICENSE AGREEMENT
BETWEEN THE CITY AND VACCO INDUSTRIES FOR
PARKING SPACES AT THE SOUTH EL MONTE CIVIC
CENTER
WHEREAS, on December 16, 1980, City of South El Monte (“City”) and Vacco Industries (“Vacco”) entered into a lease agreement allowing Vacco to use approximately 48 parking spaces located at the City’s Community Building due to certain construction and improvements at Vacco’s property located at 10350 Vacco Street; and WHEREAS, on September 10, 1997, the City and Vacco entered into a license agreement allowing Vacco to use approximately 20 parking spaces located at the City’s Civic Center Complex due to a shortage of available on-site parking for its employees as a result of consolidating its work sites; and
WHEREAS, the City and Vacco are determined to strengthen and continue to value business retention and expansion within the City; and
WHEREAS, the City and Vacco have maintained amicable contractual relationships in the past; and
WHEREAS, Vacco desires to lease approximately 50 parking spaces at the City’s Civic Center due to facility expansion; and
WHEREAS, pursuant to the license agreement, the City desires to allow Vacco to use approximately 50 parking spaces at the City’s Community Center; and WHEREAS, the 2024 license agreement for parking space supersedes the 1980 and 1997 agreements.
THE CITY COUNCIL OF THE CITY OF SOUTH EL MONTE DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1: The above recitals, and each of them, are true and correct.
SECTION 2: The license agreement, substantially in the form attached to the agenda report accompanying this resolution and approved as to form by the City Attorney, is hereby approved by the City Council.
SECTION 3: The City Council authorizes and directs the City Manager to take all action necessary to effectuate and execute the license agreement.
SECTION 4: The action proposed herein is not a project subject to the California Environmental Quality Act (CEQA) in accordance with Section 21065 of CEQA and State CEQA
01257.0001/957786.2
Guidelines Sections 15060(c)(2), 15060(c)(3), and 15378. Entering into a lease agreement for parking spaces is an administrative action that would not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.
Therefore, the proposed action is not a “project” subject to CEQA, as defined in Section 21065 of CEQA and Section 15378 of the State CEQA Guidelines. Since the action is not a project subject to CEQA, no environmental document is required.
SECTION 5: The City Clerk shall certify to the adoption of this Resolution PASSED, APPROVED AND ADOPTED this 13th of February 2024. ______________________________
Gloria Olmos, Mayor
ATTEST:
____________________________
Donna G. Schwartz, City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF SOUTH EL MONTE )
I, Donna Schwartz, City Clerk of the City of South El Monte, do hereby certify that the foregoing Resolution, being Resolution No. 24-127 was passed and approved by the City Council of the City of South El Monte at a regular meeting of said Council held on the 13th day of February 2024 and that said Resolution was adopted by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
____________________________
Donna G. Schwartz, City Clerk
City Council Agenda Report
Agenda Item No. 9.e.
DATE: February 13, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Masami Higa, Director of Finance
SUBJECT: CONSIDERATION OF RESOLUTION NO. 24-128,
RESCINDING RESOLUTION NO. 23-67, AND AUTHORIZING
THE CITY MANAGER TO NEGOTIATE AND EXECUTE A NEW
PARKING LICENSE AGREEMENT WITH COUNTY OF LOS
ANGELES AT 1415 AND 1441 SANTA ANITA AVENUE AND
1530 CENTRAL AVE
SUMMARY: Consideration of resolution authorizing the City Manager to negotiate and execute a license agreement for the use of parking spaces by the County of Los Angeles (County).
RECOMMENDED ACTION: Staff recommends the City Council:
1. Rescind Resolution No. 23-67; and
2. Adopt Resolution No. 24-128, authorizing the City Manager to negotiate and execute a license agreement for the use of City parking spaces by the County.
ENVIRONMENTAL ANALYSIS: This action proposed herein is not a project subject to the California Environmental Quality Act (CEQA) in accordance with Section 21065 of CEQA and State CEQA Guidelines Sections 15060(c)(2), 15060(c)(3), and 15378.
Entering into a license agreement for parking spaces is an administrative action that would not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. Therefore, the proposed action is not a “project” subject to CEQA, as defined in Section 21065 of CEQA and Section 15378 of the State CEQA Guidelines. Since the action is not a project subject to CEQA, no environmental document is required.
FISCAL/FINANCIAL IMPACT: For 61 parking spaces the City will be renting to the County, the City's General Fund will receive rent revenues as follows:
Year CPI Monthly Rent
Per Space
Spaces Monthly Rent Annual Rent
1 $23.77 61 $1,449.97 $17,399.64
2 2.5% $24.36 61 $1,486.22 $17,834.63
3 2.5% $24.97 61 $1,523.37 $18,280.50
4 2.5% $25.60 61 $1,561.46 $18,737.51
5 2.5% $26.24 61 $1,600.50 $19,205.95
6 2.5% $26.89 61 $1,640.51 $19,686.10
DISCUSSION: The City of South El Monte (City) initially entered into a 25-year lease agreement for parking spaces with the County on June 30, 1970. On July 6, 2005, the City entered into a lease agreement for 31 parking spaces with the County for 3 years, with the County having 3 options to renew the term of the lease for a period of 3 years each, and an option to lease up to 28 additional spaces. On July 6, 2008, the County exercised its 1st option, and on July 6, 2011, the County exercised its 2nd option, and as of July 6, 2012, the County occupied 41 spaces. On July 6, 2014, the County exercised its 3rd option, paying $19.54 per parking space for a monthly rent of $801.14 ($19.54 x 41 = $801.14).
The July 6, 2005 agreement technically expired on July 5, 2017, or 12 years later, but the County has continued to pay the City $801.14 per month for the 41 spaces to this day, or 6 years after the agreement expired.
On November 1, 2022, staff reached out to the County to renew the parking space agreement. On April 28, 2023, the County provided a draft of a license agreement for parking spaces for City's review. The County updated the agreement from a lease to a license agreement, as the majority of the County parking agreements are currently adopted as a license agreement. The City reviewed the terms and conditions provided by the County to be acceptable, and adopted Resolution No. 23-67 approving the agreement. Once the City executed the agreement and requested the County to sign, the County would not and requested 20 additional parking spaces for a total of 61 parking spaces. Staff is bringing this item back to City Council to rescind Resolution No. 23-67 for leasing 41 parking spaces, and seek authorization for the City Manager to negotiate and enter into a new parking license agreement with the County to use 61 parking spaces by adopting Resolution No. 24-XX.
ATTACHMENT(S):
A. County Signed_License - 1415 Santa Anita South El Monte - Parking - AD-BOSSH B. Resolution No. 24-128
HOA.104229431.2 1
COUNTY OF LOS ANGELES
PARKING LICENSE AGREEMENT
1415 SANTA ANITA AVENUE, SOUTH EL MONTE
This PARKING LICENSE AGREEMENT (the "License") is made and entered into this ___day of ______________, 2024 by and between the CITY OF SOUTH EL MONTE, a municipal corporation ("Licensor") and the COUNTY OF LOS ANGELES, a body corporate and politic ("Licensee").
Licensor and Licensee agree:
1. DESCRIPTION OF PREMISES: The Licensor for and in consideration of the performance of the covenants and agreements and upon the following terms and conditions, hereby grants to the Licensee the right to use sixty-one (61) surface, in-and-out parking spaces (the "Premises") located on that certain real property owned and operated by the City of South El Monte located at: 1415 Santa Anita Avenue, South El Monte, CA 91733, adjacent to the existing Los Angeles County facility located at 1441 Santa Anita Avenue, South El Monte, described more fully as Assessor Parcel Numbers 8116-022-906 and 8116-022-909 and shown on Exhibit "A", attached hereto and incorporated by this reference for the use specified in Section 6.
2. TERM: The term of this License shall be for six (6) years commencing upon the date of full execution of this License by duly authorized representatives of the Licensee and the Licensor.
3. RENT: Licensee hereby agrees to pay as rent the amount of Nine Hundred Seventy-Four and 57/100 Dollars ($1,449.97), i.e. $23.77 per space per month (61 spaces), during the Term hereof within fifteen (15) days after a claim therefor for each such month has been filed by Licensor with the Auditor Controller of the County of Los Angeles prior to the first day of each month. Base Rent for any partial month shall be prorated in proportion to the number of days in such month.
4. RENT ADJUSTMENT: Beyond year 1 of the License Term, the rental rate shall be subject to fixed two and a half percent (2.5%) annual adjustments as shown in the Base Rent schedule herein:
Year Monthly Base Rent Monthly per Space Annual Base Rent 1 $ 1,449.97 $ 23.77 $ 17,399.64
2 $ 1,486.22 $ 24.36 $ 17,834.63
3 $ 1,523.37 $ 24.97 $ 18,280.50
4 $ 1,561.46 $ 25.60 $ 18,737.51
5 $ 1,600.50 $ 26.24 $ 19,205.95
6 $ 1,640.51 $ 26.89 $ 19,686.10
5. USE: Licensor agrees that the exclusive parking spaces licensed hereunder shall be used exclusively by the Licensee for parking of vehicles, as off-street, in and out parking for Licensee's employees, agents and invitees subject to the rules of operation of the Premises. Licensor agrees to mark the spaces at its sole cost.
ATTACHMENT A L-0942
DRAFT
HOA.104229431.2 2
6. CANCELLATION: Licensor and Licensee shall both have the right to cancel this License by providing sixty (60) days' prior written notice to the other party.
7. REPAIR, MAINTENANCE AND REPLACEMENT: Licensor agrees to keep in good repair and maintain at Licensor's own expense the parking spaces in a neat and clean condition.
Licensor agrees to identify the area/spaces to be used by Licensee by re-striping applicable spaces providing numbers as needed. If Licensee wishes to have posts and/or signage, these shall be installed by Licensee at Licensee's own cost and expense, with prior consent from the Licensor, not to be unreasonably withheld.
8. INTENTIONALLY OMITTED
9. EXPENSES: Licensor agrees to pay for applicable utilities and taxes for the Premises.
Licensor also agrees to pay for other expenses related to the Premises as provided herein.
10. LOCATION/RELOCATION OF PARKING SPACES: The location of the parking spaces shall be within the boundaries of the South El Monte Civic Center which shall be defined as the area bounded by North Santa Anita Avenue/North Central Avenue/East Vacco Street. The Licensor reserves the right to designate the location of the parking provided herein, in its sole discretion, after consultation with the Licensee. Parking may be in the Civic Center Parking Lot nearest the 1441 Santa Anita Avenue, South El Monte ("County Building"), or at 1415 Santa Anita Avenue, South El Monte, or a combination thereof.
The Licensor reserves the right to move the location of the reserved parking from time to time during the term of this License or during any Option Extension term thereof, for municipal needs, provided that prior to such change in location, the Licensor shall meet and confer with the Licensee.
11. NOTICES: All notices and communications to any party hereunder shall be in writing and shall be deemed properly given if delivered personally, sent by registered or certified mail, postage prepaid, or by a recognized overnight commercial messenger providing proof of delivery, facsimile (electronically confirmed) to Licensor's Address for Notice and Licensee's Address for Notice as set forth below. Any notice so given shall be deemed to have been given as of the date of delivery (whether accepted or refused) established by U.S. Post Office return receipt or the overnight carrier's proof of delivery, as the case may be. Any such notice not so given shall be deemed given upon receipt of the same by the party to whom the same is to be given.
Licensor's Address for Notice:
The City of South El Monte
1415 Santa Anita Avenue
South El Monte, CA 91733
Attn: City Manager
Licensee's Address for Notice:
County of Los Angeles
Chief Executive Office-Real Estate Division
320 West Temple St, 7th Floor
Los Angeles, CA 90012
DRAFT
HOA.104229431.2 3
Attention: Real Estate Director
Fax Number: (213) 830-0926
With a copy to:
County of Los Angeles
Office of the County Counsel
648 Kenneth Hahn Hall of Administration
500 West Temple Street, Suite 648
Los Angeles, CA 90012-2713
Attention: Property Division
12. INDEMNIFICATION: Licensee shall indemnify and hold Licensor, and its agents, officers and employees free and harmless from any and all liability, claims loss, damages or expenses (including reasonable defense costs and legal fees), arising by reason of bodily injury, death, personal injury, or property damage resulting from Licensee's activities on the Premises. For purposes of this section, Licensee shall be understood to include all employees of the County of Los Angeles who come onto the Premises for parking or any other purpose.
Licensor agrees to indemnify, defend and hold harmless Licensee, its Special Districts, elected and appointed officers, agents, and employees, from and against any and all liability expenses (including defense costs and legal fees) and claims for damages of any nature whatsoever, including but not limited to bodily injury, death or personal injury or property damage arising from or connected with the willful misconduct, negligent acts or omissions of Licensor with regard to Licensor's use, maintenance or ownership of the Premises.
13. INSURANCE: During the term of this License, Licensee shall at all times, maintain in force a policy of comprehensive general liability insurance insuring against injury to persons and damage to property. This policy shall have a combined single limit coverage of not less than one million dollars ($1,000,000) per occurrence. Licensee may elect to use selfinsurance to fulfill this insurance requirement.
14. HAZARDOUS SUBSTANCES: Licensee hereby warrants and represents that it shall comply with all federal, state and local laws and regulations concerning the use, release, storage and disposal of hazardous substances on the Premises.
Licensor agrees to indemnify, defend and save harmless Licensee, its agents, officers and employees from or against all liability, expenses (including defense costs, legal fees, and response costs imposed by law) and claims for damages of any nature whatsoever which arise out of the presence of hazardous substances on the Premises caused by Licensor.
Licensee agrees to indemnify, defend and save harmless Licensor, its agents, officers and employees from or against all liability, expenses (including reasonable defense costs, legal fees, and response costs imposed by law) and claims for damages of any nature whatsoever which arise out of the presence of hazardous substances on the Premises caused by Licensee.
The indemnity provided each party by this provision shall survive the termination of this License.
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15. WARRANTY OF AUTHORITY: Each of the undersigned signatories for the Licensor hereby personally covenant, warrant and guarantee that each of them, jointly and severally, has the power and authority to execute this License upon the terms and conditions stated herein and each agrees to indemnify and hold harmless the Licensee from all damages, costs, and expenses, which result from a breach of this material representation.
16. SOLICITATION OF CONSIDERATION: It is improper for any County officer, employee or agent to solicit consideration, in any form, from a Licensor with the implication, suggestion or statement that the Licensor's provision of consideration may secure more favorable treatment for the Licensor in the award of the License or that the Licensor's failure to provide such consideration may negatively affect the County's consideration of the Licensor's submission. A Licensor shall not offer to, or give either, directly or through an intermediary, consideration, in any form, to a County officer, employee or agent for the purpose of securing favorable treatment with respect to the issuance of a License.
Licensor shall immediately report any attempt by a County officer, employee or agent to solicit such improper consideration. The report shall be made either to the County manager charged with the supervision of the employee or to the County AuditorController's Employee Fraud Hotline at (213) 974-0914 or (800) 544-6861. Failure to report such solicitation may result in the Licensor's submission being eliminated from consideration.
17. COUNTY LOBBYIST ORDINANCE: Licensor is aware of the requirements of Chapter
2.160 of the Los Angeles County Code with respect to County Lobbyists as such are defined in Section 2.160.010 of said Code, and certifies full compliance therewith. Failure to fully comply shall constitute a material breach upon which County may terminate or suspend this License.
18. BINDING ON SUCCESSORS: Each and all of the terms and agreements herein contained shall be binding upon and shall inure to the benefit of the successors in interest of the Licensor, and wherever the context permits or requires, the successors in interest to the Licensee.
19. CONFLICT OF INTEREST: No County employee whose position in County service enables him/her to influence obtaining or awarding any lease, license or permit, and no spouse or economic dependent of such employee, shall be employed in any capacity by the Licensor herein, or have any other direct or indirect financial interest resulting from this License.
20. GOVERNING LAW AND FORUM: This License shall be governed by and construed in accordance with the internal laws of the State of California any litigation with respect to this License shall be conducted in the County of Los Angeles, State of California.
21. ENTIRE AGREEMENT: This License contains the entire agreement between the parties hereto, and no addition or modification of any terms or provisions shall be effective unless set forth in writing, signed by both Licensor and Licensee.
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IN WITNESS WHEREOF, this License has been executed the day and year first above set forth.
LICENSOR:
CITY OF SOUTH EL MONTE,
a municipal corporation
By: ____________________________
Name: ____________________________
Title: ____________________________
LICENSEE:
COUNTY OF LOS ANGELES,
a body corporate and politic
FESIA A. DAVENPORT
Chief Executive Officer
By:
John T. Cooke
Assistant Chief Executive Officer
ATTEST:
DEAN C. LOGAN
Registrar-Recorder/County Clerk
By: _________________________
Deputy
APPROVED AS TO FORM:
DAWYN R. HARRISON
County Counsel
By:
Senior Deputy
nty Counsel S i D t
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EXHIBIT A
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ATTACHMENT B
RESOLUTION NO. 24-128
A RESOLUTION OF THE SOUTH EL MONTE CITY COUNCIL
RESCINDING RESOLUTION NO. 23-67, AND APPROVING A
NEW PARKING LICENSE AGREEMENT WITH COUNTY OF
LOS ANGELES
WHEREAS, the City of South El Monte (the “City”) entered into a twenty-five year lease agreement for parking spaces on June 30, 1970, which subsequently expired; and WHEREAS, the City of South El Monte (the “City”) entered into a twelve-year lease agreement for parking spaces on July 6, 2005, which subsequently expired; and WHEREAS, the City of South El Monte (the “City”) approved a six-year license agreement, prepared by the County of Los Angeles (the "County"), for forty-one (41) parking spaces on June 27, 2023, which subsequently did not get signed by the County; and WHEREAS, after June of 2023, the County requested an additional twenty (20) parking spaces, for a total of sixty-one (61) parking spaces; and WHEREAS, the above referenced agreements were for certain property owned and operated by the City of South El Monte located at 1415 Santa Anita Avenue, South El Monte, CA 91733, adjacent to the existing Los Angeles County facility located at 1441 Santa Anita Avenue, South El Monte, CA 91733;
WHEREAS, the County has prepared and submitted a new six-year Parking Space License Agreement for City of South El Monte review and approval; and WHEREAS, the parties now desire to negotiate and enter into a license agreement for County use of City parking spaces.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SOUTH EL MONTE DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. The above recitals are true and correct,
Section 2. The City Council hereby authorizes the City Manager to negotiate and execute a license agreement, approved as to form by the City Attorney.
Section 3. The action proposed herein is not a project subject to the California Environmental Quality Act (CEQA) in accordance with Section 21065 of CEQA and State CEQA Guidelines Sections 15060(c)(2), 15060(c)(3), and 15378. Entering into a lease agreement for parking spaces is an administrative action that would not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.
Therefore, the proposed action is not a “project” subject to CEQA, as defined in Section 21065 of CEQA and Section 15378 of the State CEQA Guidelines. Since the action is not a project subject to CEQA, no environmental document is required.
Section 4. The City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 13th day of February 2024.
_____________________________
Gloria Olmos, Mayor
ATTEST:
_________________________________
Donna G. Schwartz, City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF SOUTH EL MONTE )
I, Donna G. Schwartz, City Clerk of the City of South El Monte, hereby certify that the foregoing Resolution, being Resolution No. 24-128 was duly passed and approved by the City Council of the City of South El Monte at an adjourned regular meeting of said Council held on the 13th day of February 2024, and that said Resolution was adopted by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
________________________________
Donna G. Schwartz, City Clerk
City Council Agenda Report
Agenda Item No. 13.a.
DATE: February 13, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Rene Salas, City Manager
SUBJECT: CONFERENCE WITH LABOR NEGOTIATOR
Pursuant to Government Code Section 54957.6
City Negotiator: City Manager
Employee Organizations: South El Monte Employees
Association and the South El Monte Executive Management Team Association
SUMMARY:
RECOMMENDED ACTION:
FISCAL/FINANCIAL IMPACT:
DISCUSSION:
ATTACHMENT(S):
None
City Council Agenda Report
Agenda Item No. 13.b.
DATE: February 13, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Anthony Taylor, City Attorney
SUBJECT: CONFERENCE WITH LEGAL COUNSEL – POTENTIAL
INITIATION OF LITIGATION
Pursuant to Government Code Section 54956.9(d)(4) – (two cases)
SUMMARY:
RECOMMENDED ACTION:
FISCAL/FINANCIAL IMPACT:
DISCUSSION:
ATTACHMENT(S):
None
City Council Agenda Report
Agenda Item No. 13.c.
DATE: February 13, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Anthony Taylor, City Attorney
SUBJECT: CONFERENCE WITH LEGAL COUNSEL – POTENTIAL
EXPOSURE TO LITIGATION
Pursuant to Government Code Section 54956.9(d)(2)
Edison claim related to pole fees imposed for installation of poles in the right-of-way.
SUMMARY:
RECOMMENDED ACTION:
FISCAL/FINANCIAL IMPACT:
DISCUSSION:
ATTACHMENT(S):
None
City Council Agenda Report
Agenda Item No. 13.d.
DATE: February 13, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Anthony Taylor, City Attorney
SUBJECT: CONFERENCE WITH LEGAL COUNSEL – THREAT TO THE
SECURITY OF PUBLIC BUILDINGS
Pursuant to Government Code Section 54957
SUMMARY:
RECOMMENDED ACTION:
FISCAL/FINANCIAL IMPACT:
DISCUSSION:
ATTACHMENT(S):
None