Mr. Edwards.
DIRECT EXAMINATION (Continued)
BY MR. EDWARDS:
Q Mr. Solomon, I believe I was saying that
Mr. Watson had testified and did not recall meeting with you. Did you meet with Mr. Watson?
A Yes, I did.
Q And when was that?
A That was not long after we started buying
property in Temecula. So, you know, I can understand his potentially not remembering me. He meets with so many
people. But, yes, after I started acquiring property in Temecula, I really liked it, and I knew I wanted to be
involved there. So I asked for a meeting and went in with www.di"� nesassociates.com
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25 my broker who knew Mr. Watson, and we had a meeting
together with him at City Hall.
Q Did you have a purpose for that meeting?
A I did, yes. I wanted to get to meet the economic
development director at the time we met, so that could put a time frame on it. He would have been the right person to meet with to let him know that I wanted to develop
relationships with the City. I really liked it there, and I wanted to be involved, and if there was things that I could do to assist, you know, I would be happy to do so.
I gave him my card. And, you know, I felt like it was a very positive meeting.
Q How long was that meeting, approximately?
A That's a good question. I'm going to say
somewhere around half an hour to 45 minutes.
Q Now, do you have a custom and practice of trying
to maintain good relations with city officials in cities that you own property?
A Absolutely. Absolutely. You know, not just
because, of course, out of self-interest, it's good for me and us in our properties, and it's just -- my philosophy is that you try to give back to the community and help
develop communities, and that was consistent with what I do and how I operate.
At some point later when the Old Town Business
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25 Association was being formed -- it sounds like from Craig, there was one earlier. But when it was being formed
again, I was one of the founding members, and in doing so, helped write to the bylaws and went down for the meetings as well as the other times when I went to our properties.
And that changed during COVID, of course.
Q Now, going back to your call with Ms. Petrusis on
July 1st. Did you have another call with her?
A I did. When we were talking, Ms. Petrusis was
asking when it was that we retained Mr. Fernandez, and it reminded me one of the other things from the call that I had said to her in our first call on July 1st -- and it might have been July 5th.
The next call we had was July 5th. And either in
the July 1st or 5th call, I discussed with her that one of the reasons we needed time in order to investigate was
that we had to hire an attorney. We jumped through hoops as quickly as we could, and we wanted to find an attorney that had experience in dealing with the City of Temecula and understood the City of Temecula proceedings and
operations so that we could try to work in a constructive, productive way to try to resolve this.
What I didn't want to do is end up where we are
now, in litigation. I wanted to see if we could
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25 and worked for everybody.
Q Now, Ms. Petrusis sent you some papers at some
point after your July 1st call; am I correct?
A Yes, she did.
Q And what did she send you?
A The first thing was a July 5th -- I believe she
mailed and e-mailed me the May 19th letter, you know, of Intent to Revoke the Conditional Use Permit for 28645 Old Town Front Street. And that letter from -- I believe it was signed by Luke Watson. I have it. I can look, but I believe it was signed by Luke Watson, deputy city manager.
Besides the intent indicating intent to revoke,
it also had a list of all of the citations, and I know we were differentiating, so I think first they listed
citations, and then it listed the violations, which I
think we are calling civil penalties. So it had a list of those and the dates, and it had whether they were paid or unpaid.
And I believe it had the amount. I think it did.
And then it had, also attached to it, the Conditional Use Permit from 2012 and the two from 2008 as well. And that was the first thing I got from Ms. Petrusis. And then
there was another letter, about July 12th, I believe it was, there was I believe, again, an e-mail I believe.
It was an e-mail with attachments to add the
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25 four attachments. And then there was a letter, e-mail, I think, about OAH, but I had told her that we were looking for an attorney. So I was hoping we would be able to find an attorney that would be able to communicate with her and was familiar with the City of Temecula.
So the next communication I had, I provided her
an e-mail chain, which we told her we would, and let her know that we had secured an attorney. I think that was
July 19th, if I'm not mistaken. July 19th, we had
already, in that short period of time, been able to secure an attorney. And as we went through the investigation, we realized -- because I didn't know at the time -- that the tenant, CNC Puma Corporation, that they were in
bankruptcy.
I didn't know they were in bankruptcy. So what I
knew then was, we can't do anything about these
violations, about serving a three-day notice, or moving to file on unlawful detainer because they were in bankruptcy, and we needed to get relief from the automatic stay before we could do anything. I may have more than answered your question, or I may not have answered your question.
Q You said you went to your office in mid -July, you
have described papers received from Ms. Petrusis. Had you seen any of these papers before?
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25 A No, definitely not. In fact, Ms. Petrusis had
indicated that they realized they sent them initially for the first year to The Bank, to the wrong address, and they didn't know. Then they started sending them to us. But I didn't know anything about it until the July 1st call.
That was the first I heard of it.
Q What about the May 19th letter to which you
refer, the revocation letter, had you seen that before? A No. Nothing at all regarding this issue -- I'll
call it an issue -- with The Bank regarding the citations, subsequent when they went through the violations, the
civil penalties, or any notices of revocation, nothing.
And that's why I was so surprised to receive her
call, because, you know, it's not like I'm a hidden person and you can't find me. I am a known property owner. As
Mr. Watson said, I'm a half of a block -- it's actually a block from all my properties and a block from City Hall.
It's easy to find us. I'm a known property owner there.
I've been involved.
When the Sheriff wanted to talk to us about an
issue with the parking lot and having a stakeout at one of our buildings to look for problems, they were able to
reach the proper manager right away. I'm pretty easy to find. And I get calls from unknown brokers all the time that are able to find me. Certainly, the City, with all www.di" . esassociates.com
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25 of its wherewithal, and especially hiring private
investigators who could have easily found me. I'm easy to find, and I respond right away.
Q You have had the communications now in mid -July,
you have gotten the records from your office, did you have any communication with your tenant?
A Yes, multiple calls to try to understand and
investigate to see what was going on. Because this was -- I wanted to get up to speed quickly, you know, if there was going to be a hearing. I would hope that we would be able to avoid that. But, yes.
Q So did you reach -- did you speak to Ms. Lane?
A Yes. I'm sorry. I spoke to her several times in
an effort to first get information and input and
understand what was going on.
Q And was this in July?
A Yes, it was not long after my call with
Ms. Petrusis.
Q And what did Ms. Lane tell you?
A She said that she was not violating, that it was
a clerical error, and that she was working to correct it.
Q Okay. Did she say why she thought it was a
clerical error?
A Yes. And she said that they had gone in for a
minor modification on -- a Conditional Use Permit to be www.dilrSM%nnesassociates.com
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25 able to add inside, indoor entertainment, music, and that in so doing, the City made a clerical mistake and changed the omitted one paragraph in the earlier Conditional Use Permit allowing them to operate until 2:00. And that she had an e-mail chain from the City that showed that it was And I asked her to please send me all of the
information she had, and to send the e-mail chain. And in that conversation, she said she also had different
sheriff's that she had relationships with that would be able to write letters of support for her, and that they were one of the -- one of the better operators in the Old Town area. So I asked her to please send me that.
Before this, we hadn't had any problems with
Amanda. She's paid her rent very timely. We didn't have complaints. We didn't have issues. And in my calls with her, she was forthcoming and helpful in providing
information. So I asked her to send everything, send the e-mail chain, send anything from the sheriff's that she could and as soon as possible.
Q Now, you have a number of tenants on that block.
Did any of them ever complain to you about The Bank?
A No, not about any of the issues that we are
talking about with The Bank. We did get -- as I discussed earlier with the property managers, we did get calls about www.di" . 9nesassociates.com
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25 the vagrants and issues that we were having. Not just in the parking lot, but we had some of the vagrants that
would be sleeping on the porches on the second floor, and they were concerned about coming there in the morning and seeing them there, so that's when we stepped into action.
So we didn't have any complaints about The Bank
before to alert us. And, also, you have to remember, we had the security system. We weren't getting inordinate
reports that related to issues at The Bank, so I didn't have any issues or reason to believe that these things
were going on.
Q And the sheriff's asked you once to do a
stakeout, other than that, had a sheriff's complained to you or indicated there was a problem at The Bank?
A No. And as I understood it, they had the
stakeout once and they never asked to do it again.
Q Now, did Ms. Lane, at any time, say to you that
the violation or citations that started in March 2021 were the first violations or citations?
A I'm sorry?
Q That she knew of?
A Could you repeat that again?
Q Of course. You are talking to Ms. Lane in
mid -July 2022, and you know at this point, the history of the citations?
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25 A Uh-huh.
Q Did she make any comments about whether there
were citations earlier than the ones you had been informed of by Ms. Petrusis?
A Well, that they started out as citations, but I
didn't know anything about it. I was starting -- when I first talked to her, I was just starting to get a grasp on all of this. So I knew the citations and I knew the
violations, and Ms. Lane did send us -- I don't know if it was all, but the citations and some of the violations.
Q Did you ask her at any time whether she would
operate according to the 2012 CUP, just that document, as it was written?
A Yes, multiple times, actually. The first time
was in the early calls and I asked, you know, if she would conform to the CUP 2012 hours while trying to go through this while she was trying to resolve it. And she said she was advised by her lawyers that it would look like she was in the wrong, and that her case wasn't as good as she had been advised it was, so she wasn't going to change her
hours.
Q Did she mention anything about the effect it
would have on the insolvency of the restaurant to conform the 2012 CUP?
A She did, but that wasn't the first call. That
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25 might have been the second or third call when we asked again if she would conform to the hours just pending the hearing, as we got subsequent conversations regarding -- we knew about the hearing, and she said that she couldn't, that The Bank would be insolvent in 30 days if she did
that.
Q Okay. Now, you have told us that you amassed, as
best you could, every communication from the City to your office concerning the CUP citations --
ADMINISTRATIVE LAW JUDGE NYE-PERKINS:
Mr. Edwards? I apologize, but you broke up. Can you
repeat the question?
MR. EDWARDS: Fair enough. Of course, your
Honor.
BY MR. EDWARDS:
Q Mr. Solomon, you have told us you went to the
office, your office, and you requested that everything
concerning the CUP that had been sent to your office or received to your office be compiled for you; am I correct? A That is correct.
Q Okay. And when did you do this? If July 1st is
when you first heard of this from Ms. Petrusis, when did you go to your office?
A I would say certainly within a couple of weeks.
It was by July 12th that I got the citations from
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25 Ms. Petrusis -- and hers, by the way, I think was probably a pretty comprehensive list of them and seemed to be, at least, from what I can tell. There were four attachments.
One just from citations -- and maybe it was two with
citations, and then two or three others with the civil
penalty letters. It was pretty voluminous. So I was
guessing it was pretty inclusive up until July 12th, at least.
And, you know, so right after that, I went to my
office. And I talked to him before then of course, to get everything together and make sure everything was there.
And I went there, probably, right around that time. It
might have been a little bit before or a little bit after.
Q If you had received any of these notices or
violations, would you have done anything?
A Yes, of course. The first thing I would have
done is called Tom Cole, as allowed for. The second thing I would have done was what I did after my phone call with Ms. Petrusis, was to try to arrange and set up a meeting with the city manager there.
Q Now, have you learned that your property manager
was informed of some of these violations at some point? A Yes. Yes, I have.
Q And what did you learn, and when did you learn
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25 A I learned it just subsequent to my phone calls,
you know, the second one of July 5th with Ms. Petrusis.
And after that, and certainly within a day or two, called the property manager and had the conversation that you
would expect. Do you know anything about this? Have you heard anything about this? I know nothing about this, and you know, I'm assuming you don't either. So that's when I found out.
Q And what did you find out?
A I found out that there had been notices of the
violation sent to the management company's office, to
Zip's office, at the Wilshire address, and they had them.
Q Starting when?
A Starting in March of 2022, the first letter was
dated March 7th for violations on March 2nd, 3rd, or 4th, whatever the -- I can pull it up now. Whatever the Friday and Saturday was -- the first Friday and Saturday in
March.
Q Did you ask the property manager why you were you
not provided with the notice, you personally?
A As you can imagine, I did, yes.
Q And when did you ask him?
A In my first conversation.
Q And what did he say?
A He said that when he received them, he called
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25 Amanda right away or pretty quickly thereafter and asked her about it and inquired about it.
Q Did he say what he was told?
A Yes, he did. He said that she said that she was
aware of them, and that the City was wrong, and that she was operating within her Conditional Use Permit, and that it was a clerical error, and that she was working with the City to resolve it.
Q And did -- did he say whether he was satisfied or
dissatisfied with that explanation?
A He said that based on his conversation, he
believed that was correct and that she was taking care of it, and he didn't have to worry about it.
Q Now, you said earlier that you had never heard of
problems at The Bank except for the specific ones you
described. Did you ask the property manager whether he
was aware of problems at The Bank besides the one you had described to us this afternoon?
A Yes. You know, given my conversation with
Ms. Petrusis, and given what I had seen, you know, I said you know -- you believed all of this. And he said, "Yes.
And, Norm, you know, since she's come in there, she paid the back rent that was owed, which was significant. She pays her rent on time. She's been responsive, if ever
there's something needed."
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25 And he referred to the parking lot and any issues
we were having and her trying to help, agreeing to, you know, send security guards there once in a while to check it. And he said that we have lots of tenants all around, and we have gotten no complaints. And we have a security camera system. We don't have any inordinate monitoring
reports to make me believe that something of this nature was going on, so I assume everything was okay, and I
believed her.
Q Now, there's testimony about hiring bankruptcy
counsel, you are also in the process of hiring unlawful detainer counsel?
A That is correct. That, we couldn't really do
until the bankruptcy counsel was able to get relief from the automatic stay. Because given that the tenant was in bankruptcy -- we didn't know that the tenant was in
bankruptcy. We had to file for relief of the automatic
stay. And in this case, we were lucky to get an order in short time so we could do that, and then the bankruptcy case was dismissed, and we are now able to file a relief for unlawful retainer.
Q Now, after Ms. Petrusis informed you of the
general nature of the revocation of July 1st of this year, did you request a meeting with the City manager?
A I did, yes. Almost right away after, because my
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25 goal was to make sure the City knew that we wanted to try to get a positive resolution and work with the City and cooperate with the City and see if we couldn't resolve
this without continuing down the path that would be,
frustrating, expensive, costly in time and resources, and likely not, from what I understood, produce any positive results anyhow. So to answer your question, I requested a meeting with the City manager almost right away.
Q Did you receive a response?
A I did.
Q What was the response?
A That he would decline to meet with me and told me
it would have to be worked out with the City Attorney.
Q Now, do you have a reason to believe that if the
conditional Use Permit is revoked and you do not evict the tenants, the violations will be cured or cease?
A At this time, I believe that the violations
occurring to the current CUP of the latest CUP of 2012, I believe they would not cease.
Q And why is that?
A Based on what our tenant, Amanda Lane, told me.
That she's continuing to operate at the hours she's
operating notwithstanding my request both in writing and orally on several occasions that she cut back her hours and comply with the 2012 Conditional Use Permit at least www.di" esassociates.com
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25 until we can, hopefully, resolve the matter in some way or pending the hearing.
Q Now, this is not the first time that you have
bought a property that had a Conditional Use Permit;
correct?
A That is correct. In fact, I have applied for and
gotten Conditional Use Permits.
Q In your hundreds of purchases of property, has
anyone ever contended, who was a tenant, that they owned the CUP and that you didn't?
A No, never.
Q Okay. Now, you, at times, have been consulted by
real property appraisers for your opinion of value when they have projects?
A Yes.
Q Do you have an opinion about what revocation of
the CUP would do to the value of your property?
A I do. As I told Ms. Petrusis in our first
conversation, subsequent to that, that it would have a
significant detrimental impact on the value of the
property, and that it was my hope that we could get time to work through it, and that I didn't understand why this has been going on for a year and a half without me being contacted.
Q Now, my next question is, so we are all clear,
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25 what does a CUP mean regarding the use of property?
A It's a Conditional Use Permit, meaning that a
property is conditionally permitted to a use that might not otherwise be allowed without that permit, so that if you didn't have it, you very often and likely could not conduct business in the way that you can, or could not use the property in the way you can when you have the
Conditional Use Permit.
Q Does greater usage potential, in your experience,
increase the value of a property?
A Yes. If your use -- in this case, our property
is a restaurant/bar or restaurant serving alcohol or bar, and clearly, the longer your hours, the more your
potential to make money and/or the more you could do with it, if you can have entertainment there, or the more you can generate income which would then correlate to a higher value for the property.
Q So what's the highest and best use of this
property?
A I would say the highest and best use for this
property, given its location, size, et cetera,
configuration, as a restaurant/bar. It's current use.
Q Okay. Now, do you feel as a property owner with
decades of experience and hundreds of properties, that you were dealt with by the City in a fair and reasonable
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25 A Absolutely not.
Q And why not?
A There just was not sufficient notice that we
received. And there was not a willingness to try to work with us even when we received notices. We were turned
away and told by Ms. Petrusis that there's nothing in it for the City and that she was going forward. She would
not allow any time to allow us to try to work with the
City, try to get the tenant to comply, try to file a
unlawful detainer, or evict the tenant.
I just was shocked. And I was shocked that this
had gone on for a year and a half without me being
notified, and given the resources the City was spending, I thought is was unconscionable that they didn't call me.
We are talking about a City that used resources on Friday and Saturday night, a whole metro police that was
constructed, had these private investigators, and couldn't get anybody to call me for a year and a half?
And when they did, as the property owner, holder
of the CUP, who is the one who is going to be
detrimentally affected when they revoke it, that they
weren't willing to put any resources out to try to get
ahold of us. And at a point we would have done -- I would have done exactly what we have done in two months, find a www.di" esassociates.com
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25 counsel that understands these proceedings and wanted to work with the City of Temecula, find a bankruptcy attorney that is familiar with Riverside County, and get the
results he did in such a short period of time.
And, now, we are about to retain an unlawful
detainer -- familiar with unlawful detainer in Riverside County. And it's my belief -- and you have heard here -- that revocation of the Conditional Use Permit is not going to result in what the City wants, which is the tenant to cease operations. They're either going to work with the City, which I would like to do at any point so that we can come to a resolution that's positive for all parties, or, if that's not possible, to allow to have time to move
forward with an unlawful detainer which is the way that this matter would be resolved.
If the City doesn't realize that, then I don't
know what else we can do but keep moving forward anyhow.
I raised the issue. And I don't understand why the City is not going forward if they want to stop something that they feel is inappropriate with an abatement action.
That's a way to stop it. The City has the power to do
that. Revocation of the Conditional Use Permit is not the way to do that.
Q In addition to being in real estate -- I
recognize you don't practice -- but you have an active law www.di .esassociates.com
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25 license? You are an active member of the BAR; is that correct?
A That is correct, Mr. Edwards, yes.
Q And you are a graduate of USC Law School, and you
have been a member of the BAR for almost 50 years; am I correct?
A That is correct. In fact, I just went to my 50th
law school reunion.
Q I hope it was a large gathering.
A Unfortunately, it's getting smaller every year.
Q But here's my question, with your familiarity
with law, familiarity with real estate, do you have any ability to control this tenant other than eviction?
A No. I have the ability to talk to the tenant, to
discuss things with the tenant, to explain the lease with the tenant, and the violations in the lease with the
tenant, but I cannot control the tenant beyond bringing in an unlawful detainer action. And that, we could not do, until we got relief from the stay, and now we're about to.
But you are right, that's the only thing we can control.
Q Now, the City was aware you owned other buildings
in the city of Temecula; correct?
A Well, yes, because -- I don't see how they
wouldn't. Zip Third owns four buildings right on that
block.
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25 Q You met with Mr. Watson, and he was aware of your
intention to acquire more property?
A That is correct yes, among other people.
Q But, currently, how many buildings -- I just
don't want to leave the impression that you have some
buildings in Temecula and no where else -- and we are
almost at the end of your direct examination and we will be done within 60 seconds.
How many buildings are you currently a principal
in either as you own it yourself, you own it with
partners, or own it as a manager of an LLC?
A Without actually looking and counting, I would
say 40 or more.
Q Okay. These are in various parts of Southern
California primarily?
A Primarily, Southern California, but there are
some in Northern California as well, yes.
Q And have you ever had this level of difficulty
with any governmental entity?
A No.
MR. EDWARDS: Thank you, your Honor. That
concludes my direct examination.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Thank you,
Mr. Edwards.
Ms. Petrusis, cross-examination?
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25 MS. PETRUSIS: Yes.
THE WITNESS: No questions, I presume. I'm
sorry, your Honor. I couldn't help it.
MS. PETRUSIS: Yes, I have some questions.
CROSS-EXAMINATION
BY MS. PETRUSIS:
Q Mr. Solomon, would you please turn to the City's
Exhibit 12?
A Absolutely, but I will need some help. So I will
bring it up. I have -- what is it when you make it
smaller? I have -- I'm going to have to bring it up here.
Let me do that. Okay. Now I can't see you, but I have
the exhibit in the middle. So if somebody will tell me -- I'll tell you what I'm looking at.
Q Mr. Solomon, can you please go to page 198?
A That's what I was going to say, I don't know how
to do that. So I was going to tell you what I'm looking at, and Ms. Petrusis, if you could help me, that would be great. In the middle of Exhibit 1, and on the left, it
says, "The Bank/other SD," and goes down the list. So if you tell me where on that list to click on it, I'll be
happy to.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS:
Mr. Solomon, this is Judge Nye -Perkins. I can tell you. www.dilrSdYW2nesassociates.com
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25 If you look under Complainant Attorney Petrusis Evidence, under that top part on the left-hand column, there is
numbers underneath that. Do you see that?
THE WITNESS: Yes.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Can you go
to No. 12?
THE WITNESS: Yes, I can. Hold on. No. 12 says
Exhibit 12, August 2021. Is that what you want?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Yes.
Click on that.
THE WITNESS: Yes.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: And then
scroll down past where that cover page says Exhibit 12.
THE WITNESS: Yes.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: And a
sheet of paper, there's a red number in the right-hand
corner of that document, A-198. Do you see that?
THE WITNESS: Yes, I do.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: That's a
Bates number. When we say "Bates No. A-198," that's what we are talking about. The document that Ms. Petrusis
would like to talk about.
THE WITNESS: So I can't see any of you. Can you
see me through this?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Yes, we
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25 can see you.
THE WITNESS: So I can't see you, so go ahead.
Yes.
BY MS. PETRUSIS:
Q Okay. So if you look at page 198, and you look
at the address for Zip Third Investments, LLC --
A Yes.
Q -- has as an addressee; is that the correct
business address for Zip Third Investments, LLC?
A Yes.
Q If you look at the "re" line, and it starts with
"re:"?
A Yes.
Q Is that the correct address for The Bank
restaurant?
A Correct.
Q And that is the correct address for property
owned by Zip Third Investments, LLC; correct?
A Yes.
Q And in the body of the letter, in the second line
toward the end, do you see a reference to The Bank?
A I do.
Q And in August of 2021, was the restaurant
operating at 28645 Old Town Front Street named The Bank? A To my understanding, yes.
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25 Q And the last paragraph for the last line of that
letter, which says, "If you have any questions regarding this matter, please contact me at 951-302-4116." Do you see that?
A I can assure you if I saw that, I would have
called Mr. Cole immediately.
Q Okay. Well, my question is, first, do you see
that line on the page?
A I do.
Q Okay. And did you ever reach out to code
enforcement officer Tom Cole at any time about the
violation by The Bank?
A As I said, if I had seen this letter or any of
the violation letters, I would have immediately reached out to Tom Cole.
Q Okay. But my question is, did you? It's yes or
no.
A I can't say yes or no because I didn't because I
never saw any of it. I never saw any of these until
subsequent to speaking to you in July of this year.
Q Have you ever reached out to Tom Cole about the
violations at The Bank?
A Again, no, because I never saw any of these
letters -- this letter or any of the violations giving me the information to reach out to him. I would have
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25 absolutely, 100 percent, reached out to him.
Q I think I got the answer.
The motion for relief from automatic stay in the
bankruptcy action was filed on August 16, 2022; isn't that right?
A I believe so. That sounds like the timing,
correct.
Q And before that --
A The motion for relief was filed on a Tuesday.
Q Okay. And before that date, you had never filed
anything or caused to be filed anything in bankruptcy
court to get the stay lifted; isn't that right?
A Can you repeat that again, Ms. Petrusis?
Q Yes. Before the August 16, 2022, date, you had
never caused anything to be filed in the bankruptcy court matter to get the stay lifted; is that right?
A No, that's not correct. We filed in the
bankruptcy court because CNC Puma Corporation had filed a bankruptcy in, I believe, it was 2020, or the end of 2019.
Because they were behind in their rent, and we were filing a UD, and they filed the bankruptcy. So in order to be
able to go forward, I believe we had to file a motion in bankruptcy court for the relief of automatic stay back
then.
But as I understood it, the bankruptcy had been
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25 dismissed so that -- before the back rent was paid, and I thought we understood Amanda Moore came in and in CNC Puma Corporation.
Q So if I understand you correctly, you had
previously filed a request for relief from the stay and that bankruptcy matter prior to August of 2022?
A In a prior bankruptcy, as I said, I didn't know
that they refiled the bankruptcy. We understood when the bankruptcy was dismissed and the back rent was paid, and as we understand, Amanda and Ryan were coming into
CNC Puma Corporation, that there was no more bankruptcy.
So as far as we knew that -- we just weren't
informed when it was filed or refiled later. I don't if it was the same one or a different one, by the way. When I say "the same or different," that bankruptcy case had been dismissed, so I assumed it was a new filing that we didn't know about.
Q Now, did you ever have any conversations with
Craig Puma about the violations of the CUP by The Bank? A No, because Amanda came in in 2020. As far as I
knew, there were no violations back then, even from what you have sent me and what I learned. Those violations
started in 2021, and she came in in 2020. So there was no discussion about violations that didn't exist because
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25 is the City had never violated them before --
Q Mr. Solomon, wait. I haven't asked you that
question. Hang on. Have you ever had a conversation with Mr. Puma about the violations by The Bank?
A Can I ask you one question?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: No.
Mr. Solomon, if you don't mind, please just answer the
question asked.
THE WITNESS: Absolutely. Your Honor, I was
going to ask, can I close this or minimize this so I can see you guys now?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Yes, yes.
THE WITNESS: I just want to minimize that all.
Okay. Thank you. Okay. Now, I'm sorry, Ms. Petrusis,
can you ask it again?
BY MS. PETRUSIS:
Q So the question is, have you ever had a
conversation with Mr. Puma at any time about the
violations by The Bank of the CUP?
A You are talking about since the violations were
sent in March of 2021?
Q At any time.
A Okay. No, I don't think I have. Because you are
talking about the violations you are talking about?
Q Yes. Thank you.
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25 MS. PETRUSIS: No further questions.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: All right.
Cross-examination, Mr. Callaway?
MR. CALLAWAY: Thank you, your Honor.
CROSS-EXAMINATION
BY MR. CALLAWAY:
Q Good afternoon, Mr. Solomon.
A Good afternoon, Mr. Callaway.
Q Were you able to hear the testimony of Amanda
Lane earlier today?
A Mr. Callaway, I believe I heard most of it, yes.
I may have been away a minute or two, but most of it, yes.
Q Did you hear testimony regarding that she is not
receiving any offers from the City to work on resolving the CUP issue by allowing them to file a new minor
modification to the 2007 CUP back to restore the operating hours back to 2:00 a.m.?
MS. PETRUSIS: Objection. That misstates her
prior testimony. She didn't testify to that.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: I'm going
to sustain that. I don't believe she testified to that
either.
MR. CALLAWAY: Okay.
BY MR. CALLAWAY:
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25 Q As far as the current status of The Bank, where
are they at with respect to payment for their lease
obligations as far as their rent?
A They are current on payment in their rent.
Q Okay. And have they ever been arrears?
A Yes, significantly.
Q When was that?
A That was back in 2019 and 2020.
Q Was that before Amanda Lane and Ryan Parent got
involved with CNC?
A Yes, my understanding.
Q Okay.
A I think what I heard today is she might have
gotten involved before we actually knew she was involved.
Q Her testimony was that she got involved in
January or February of 2020.
A Correct. I think we knew about it around -- back
rent was paid by her -- as we understood, by her and Ryan in August, so it might have been some time before July, and I don't know that we knew about it that far in
advance. It's possible, but I don't think so.
Q But they were brought current; correct?
A Yes.
Q And did they remain current at this time?
A That is correct. Since August of 2020, correct.
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25 Q Okay. Other than the base rent, are there any
other fees that they're required to pay on a monthly or annual basis?
A Yes, I believe it's net lease. I know they pay
other reimbursements.
Q Are they current on those at the present time?
A As I understand it, yes.
MR. CALLAWAY: No further questions, your Honor.
Thank you.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay.
Any redirect, Mr. Edwards?
MR. EDWARDS: No redirect, your Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Thank you,
Mr. Edwards.
Any further witnesses, Mr. Edwards?
MR. EDWARD: None.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay.
Mr. Solomon, you may be released.
All right. It's now currently 4:30. That gives
us time for closing statements. Does anybody need to take a break, or can we go through and get closings done and hopefully finish by 5:00?
MS. PETRUSIS: I apologize. I do have rebuttal.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay. We
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25 have one rebuttal witness?
MS. PETRUSIS: I have one rebuttal witness. It's
probably seven questions -- six questions.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay.
Mr. Callaway, any rebuttal witness?
MR. CALLAWAY: No, your Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay.
Mr. Edwards, something you wanted to say?
MR. EDWARDS: No, I have no rebuttal witness,
subject to hearing this witness, as you know.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: All right.
Ms. Petrusis, we will move forward as long as
everyone is okay to continue without a break. Now, having said that, it's 4:30, so we are getting really tight here.
I might go -- if our court reporter and everyone is okay, I will go a little bit after 5:00, if necessary, so we
don't have to come back for another day. That is my
preference if everyone is okay with that. So let's work through that if everyone is okay with that.
THE WITNESS: Can we take a short break, your
Honor?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: We can
take a short break, Mr. Solomon, but I'd rather not. How long do you need?
THE WITNESS: Five or six minutes, that's all.
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25 ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay. All
right. Let's go off the record.
(There was a pause in the proceedings.)
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: We are
back on the record after the break.
Ms. Petrusis, do you want to call your rebuttal
witness?
MS. PETRUSIS: Yes, your Honor, Stuart Fisk.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Mr. Fisk,
are you there?
MR. FISK: I am.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay. I
can't see you, but I can hear you. There you are.
Mr. Fisk, I'm going to place you under oath. Please
raise your right hand.
STUART FISK,
called as a witness, having been first duly sworn by the Administrative Law Judge, was examined and testified as follows:
THE WITNESS: I do.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Put your
hand down. Please state and spell your full name.
THE WITNESS: Stuart Fisk, S-T-U-A-R-T, F-I-S-K.
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25 ADMINISTRATIVE LAW JUDGE NYE-PERKINS:
Ms. Petrusis.
MS. PETRUSIS: Thank you.
REBUTTAL EXAMINATION
BY MS. PETRUSIS:
Q Mr. Fisk, what is your current position at the
City of Temecula?
A Planning manager.
Q And in 2012, what was your position?
A Senior planner.
Q In 2012, did you have a role in the 2012
conditions of approval that are the subject of this
matter, PA 12-0041?
A Yes. I don't normally review applications such
as this, but under the direction of my director at the
time, I did. I did review and process the approval
documents for it.
Q There has been testimony in this matter about
whether the permitted hours that are set forth in
Condition No. 12 of PA 12-0041 were a typo or were some sort of clerical error. Do you have a position on that? A Yes, I did that. I did the approval. I put the
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25 instructed me to revert to the 2007 of the original
conditions of approval and then to add in the condition that would allow for the indoor live entertainment.
Q So it was not a clerical error, the hours in
Condition No. 12 of PA 12-0041?
A No, that was not. It was done specifically at
the direction of my director.
Q Is a DJ considered live entertainment under the
Temecula Municipal Code?
A Yes, it is.
Q Does a restaurant need a CUP in order to have a
DJ?
A Yes, they do.
Q Do you have a position on whether a DJ operating
at The Bank would be in conformance with their 2012
conditions of approval?
A A DJ at The Bank under that approval would not
have been consistent with the language in the conditions of approval.
Q I don't know if you heard this testimony, and
please let me know if you need clarification. There was previous testimony about drag show events at The Bank.
Did you hear that testimony by Ms. Lane?
A Yes, I did.
Q Is a drag show event that was described in
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25 previous testimony in which the performers lip synced or sing and dance, is that considered live entertainment
under the Temecula Municipal Code?
A Yes, it is.
Q And do you have a position about whether that
drag show performance or that type of entertainment is
consistent with the 2012 conditions of approval?
A Definitely not.
Q Did you hear Ms. Lane testify about -- I think
she referred to it as a 2009 CUP?
A I did hear her refer to that.
Q Okay. And she mentioned that the City couldn't
produce a copy of the 2009 CUP. Did you hear that?
A My recollection was she said was the 2008 CUP
amendment.
Q Okay. But do you remember her talking about the
2009 CUP?
A I don't recall her actually calling it a CUP, but
I do remember her talking about an application from 2009, yes.
Q Okay. Well, can you explain whatever it was,
that 2009 application, so that it's clear what she may
have been referring to?
A Yes. In 2009, The Bank wanted to expand their
ability to sell or have consumption of alcohol out on
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25 their patios and the state, ABC, requires that those areas be delineated. So there's various ways that you can do
that, but some type of railing or fencing is typically the way.
And so to accomplish that, we did a modification
to the development plan, which showed that on the site
plan for the property where that new fencing would go, or there's railing with cables in it actually, along
Front Street.
So that was what that application was about. And
it was not to amend the Conditional Use Permit, it was to amend the site plan to delineate the area for the alcohol consumption part.
Q So just to be clear, there are still only two
applications to modify the original CUP in this matter
from 2007; correct?
A Correct.
MS. PETRUSIS: Thank you. No further questions,
your Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Give me
just one second.
Cross-examination, Mr. Callaway?
MR. CALLAWAY: Thank you, your Honor.
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25 CROSS-EXAMINATION
BY MR. CALLAWAY:
Q Mr. Fisk, what was your title in 2012?
A Senior planner.
Q And you said you did not normally take
applications in the office, that's not something you would typically do?
A I did some for the larger projects such as the
Temecula Valley Hospital, but not frequently. Those would usually be assigned by me to other staff.
Q Do you have a recollection of Mr. Puma coming in
in 2012 with his application for the CUP minor
modification?
A A vague recollection. I worked with Mr. Puma
frequently because he was on our board, and so I saw him so often, the lines get blurred. But I do remember him
coming to the counter and us working on his application.
Q Do you know why, on that occasion, you worked
with him on his application if that's not something you would normally do?
A Because my director, Patrick Richardson, had
asked me to do so.
Q It sounds like something out of the ordinary;
would that be correct?
A Perhaps. But Mr. Puma, being a board member,
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25 maybe there was reasons why Mr. Richardson wanted me to do it, but I can't speak to that. We would have to ask
Mr. Richardson if he were available, but he is no longer with the City.
Q So he didn't give you any reason as to why you
should personally handle this particular CUP application? A No. And he wasn't someone that you would ask
those questions of. You just do what he tells you to.
Q How is it that he came to tell you to go handle
this application in the office? Did you have advance
notice that the application was coming in?
A I don't recall. I would presume that
Mr. Richardson and Mr. Craig Puma had talked prior, and that was probably the reason why Mr. Puma had even filed the application was because Patrick Richardson most likely told him he would need to do so.
Q But you are just speculating on that; correct?
A Correct.
Q Do you have the City's Exhibit 8? Do you have
access to that?
A Give me just a moment. Exhibit 8?
Q Yes, sir.
A I have that open.
Q Do you recognize that document?
A Yes, I do.
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25 Q When
is the last
time you've
ever seen
it?
A It is
sitting in
front of me
right now
in a hard
copy, so seconds ago.
Q What's the title of this form? Not the
handwriting part, but the preprinted part.
A Conditional or Temporary Use Permit Application.
Q Would that be the proper form for CUP minor
modification?
A We do have a separate application form, but much
of the information is the same, at least in the first two pages.
Q Do you know why this particular form was used in
this instance?
A I would have to ask Mr. Puma that, but my best
answer is because that is the form that Mr. Puma filled out.
Q Is your writing anywhere on this form?
A Yes, it is.
Q Starting at the top, can you tell me the first
place that your writing appears?
A Top right corner, PA 12-0041. My initials in the
Date Received box, and then the words crossed out that
says, "Minor Modification Planning Review only," with my initials and the date. Do you want me to keep going?
Q Wherever the next place is that your writing
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25 appears on this document.
A Where it says, "Major temporary use permit," and
it's crossed out and the $300.00 amount is written in.
And then moving down to the Additional Project Summary
Information, the dates of the proposed event. In working with and speaking to Mr. Puma, I also modified to give the -- to set the time of days for daily versus the Thursday to Sunday, and to go from noon to 10:00 p.m., rather than 5:00 to 10:00 P.M.
Q So that noon to 10:00 p.m. had nothing to do with
their operating hours; correct?
A No, that was only their application for the time
of the live entertainment. So it's specific to the live entertainment component. And then at the bottom, written is an existing CUP. PA 07-0314, that is my writing also, I believe.
Q How about hours of operation from 9:00 a.m. to
1:00 a.m.?
A That is not my writing.
Q The two of you met face-to-face relative to this
document; correct?
A Right.
Q When he was standing in front of you at that
time, did you have an understanding as to what their
allowable operating hours were?
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25 A Not at that moment, no.
Q Subsequent to that, did you become aware?
A Yes, I would have gone back to do the review of
the application. And because we have a reference here,
the previous planning application, we would have looked at that application, and then even the 2008 application which references the planning application of 07-0314. So those would have been tied together in our permitting system, and I would have looked at all of those.
Q Do you have a specific recollection of doing
that, or are you testifying off of your habit and custom? A No. I do recall doing that, and I do recall
discussing the conditions of approval with the planning director at that time, Patrick Richardson. So we did talk about the different iterations of the conditions, and he gave me the specific direction, then, to revert to and
utilize the 2007 approvals as I stated previously.
Q How was your relationship with Mr. Puma at that
A Fine. It always has been. We've always worked
very well together.
Q When he was there, did you tell him that the
approval of the application would be a formality?
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25 process that we would be utilizing. And he had indicated in his testimony earlier that he had given some indication that it would be approved quickly, and it was. I think it was turned around pretty much in a day.
Q Did you have authority, at that time, to approve
this without speaking to anybody else?
A No. The director would have needed to have been
involved. He would have at least needed to know what I
was planning to do with the approval, and then he would have given his okay if he was in agreement with what I was proposing. But, in fact, as I mentioned, he gave me
specific direction on what to do.
Q So when Mr. Puma was there in front of you, as
the two of you were filling out the application, did you voice to him any concerns you had with what he was
requesting?
A No. I mean, until I actually reviewed the
application and discussed the application with our
director, I'm not going to talk about concerns. I really have to look at it and look at the municipal code before I just start shooting from the hip.
Q At the time you accepted this application, in
looking at it, did you have any concerns at that time
before you started your research?
A I don't recall any having any specific concerns.
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25 Q Is there anything about a minor modification to
add a one -person musical addition at that time that would have caused you concern?
A Only if it had been proposed for outdoor. But
since it was proposed for indoor, there would have been nothing to raise any concern.
Q Was this type of request on a minor modification
or CUP, is that something that you have commonly seen in the City of Temecula?
A From time to time. It's not unheard of.
Q Are they generally approved?
A Yes.
Q Are they generally approved with conditions or
with compromise, or are they approved outright?
A It all depends on the application and the
location, but there's a lot of variables in that, so I
can't give a simple answer.
Q Was there any type of standing practice at that
time with the City if you are going to give somebody
something that you should take something away in the
application process?
A No.
Q So when you and Mr. Puma parted ways at that
time, you had not voiced any concern to him; is that
correct?
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25 A That's most likely correct. I don't know why I
would have.
Q There's nothing in here that stood out to you as
being an obvious concern; correct?
A Not to my recollection, and not looking at it
today. The only thing, looking at it now would be the
inconsistency with the hours of operation that were listed on that application form, but I wouldn't have looked at that while sitting with Mr. Puma. I would not have
compared that to the previous approvals at that point in time.
Q Do you have a recollection of what your next step
was in the process of evaluating this application?
A The first thing that we have to do is get
everything logged into our computer system and routed to the other departments for their review and input. And
then from there, I would have been reviewing the previous approvals, and then, discussing with our director.
Q And who else would this have gone to as part
of -- go ahead.
A At that time -- I don't have the record of it, so
I really can't say with certainly. But the typical
process, if you want to know that, I can answer that.
Q Yeah, the typical process that was in place at
that time.
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25 A Typically, then, it would have gone to our police
department, it may have gone to our public works
department, and fire, and building and safety as well,
because they do look at modification applications. But in this case, I assume it would have at least gone to
building and safety just because when you add
entertainment and you are taking up space inside the
building, they would have most likely wanted to review
exiting and other issues related.
Q Who within the planning department would have
this been routed to?
A Just myself.
Q Okay. So is your next step to start your
background work or to go to Mr. Richardson?
A I'm sorry. Next step after what?
Q After the application was accepted and put into
the system. Actually, let me ask you a question about
that. Who would put this application into the system as you described?
A The planner assigned, which, in this case, would
have been me.
Q Is there anything on this document that shows by
initials or any mark confirming that that was done?
A The only thing on it would be the receive dated
where I had initialed up at the top right corner of the www.di esassociates.com
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25 first page.
Q When you put this into the system, what does that
consist of?
A It has a project description, location, the
applicant's name, the type of application, where or to
whom which departments the application was routed,
generally, that type of information. So this was under -- in 2012, we were under a different permitting system than we are now, and it was not as robust as we currently use.
So it was more basic. It would have been the general
information that would have been inputted.
Q Is that information still available in your
system? In other words, would you still have, presently, what you inputted into the system back in 2012?
A I don't know. I can only tell you that I've been
able to pull up what we have on file as far as digital
records. And I'm not sure about our old permitting
software, what capability I have to go open that and find things.
Q Okay. And, again, when you inputted that, the
only person it would go to in the planning department
would be yourself?
A Correct.
Q And is Mr. Richardson, or was he, in 2012, in the
planning department?
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25 A Yes, he was.
Q What was his position relative to yours? Was he
a superior of yours?
A Yes, he was.
Q Okay.
A He was the department director.
Q Okay. And, again, your testimony is at that time
you did not have the authority to approve this application on your own?
A Correct. I would have needed to have gone
through the director for his approval of any direction
that I presented to him that I wanted to go or to take his direction and proceed with his direction.
Q So Mr. Richardson would be the only person that
you would go to for approval on this particular
application?
A Yes. Ultimately, in an administrative review
process, the director is the ultimate person responsible for that approval.
Q You mentioned that after putting this application
into the system, that you would do research on it, going through the city records that pertain to the applicant; correct?
A Correct.
Q And in this case, did you do that personally?
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25 A Yes.
Q And what was it you found, if you recall, when
you went into the system?
A Just the two previous applications. The first
one that would have approved the Type 47 alcohol license, and then the 2008 modification to that use permit. And I would have only been looking at that time for things that directly or specifically related to the original 2007
application. So anything dealing with site plan
modifications and such wouldn't have been a part of that analysis.
Q Are you referring to the 2009?
A Referring to anything not related to the
Conditional Use Permit.
Q Do you have a recollection of doing that specific
investigation?
A Which specific?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS:
Mr. Callaway, I think we've covered this pretty
extensively on his investigation. I'm not sure where you are going with this. Please keep in mind, we are short on time here.
MR. CALLAWAY: I understand, your Honor. I
understand.
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25 BY MR. CALLAWAY:
Q When you did your investigation, did it raise any
concerns for you?
A No, sir.
Q Was there anything in your investigation that you
felt warranted reducing the hours in consideration of the request to adding a musician?
A Nothing that I found personally, no.
Q So when you went to Mr. Richardson, you had
completed your investigation; correct?
A That is correct.
Q How did you present this to Mr. Richardson? Was
it in person or through other means?
A In person, meaning in this office.
Q Did he ask you what your thoughts were on whether
to approve this or not?
A No. He would -- that would not be something he
would do.
Q Is it something you would hand to him and walk
away, or did you walk in there and he looked at it right then and there?
A We had one-on-one meetings scheduled, so most
likely, we would have discussed this type of thing during one of our scheduled meetings, and we sat and went through what I found, what was in the previous conditions of
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25 approval from the original approved modification, and what was on the application, and what they were asking for -- what Mr. Puma was asking for at the time of the 2012
application.
Also noteworthy, is that there was a different
director of the department in 2008 when that modification was approved. That was not done under Mr. Richardson.
Q Did Mr. Richardson express to you any concerns he
had over the application?
A The only thing that I recall is that he was not
comfortable with the change that was made to the hours of operation in 2008, and that he wanted to revert to the
original conditions of approval because of that. So that was the only information that he gave me on why he wanted me to go that route.
Q At that time in 2012, how many establishments in
Old Town could stay open until 2:00 a.m. if you know?
A I don't know.
Q Was The Bank the only one?
A I can't answer that. I really don't know without
doing research on that.
Q Do you know how many establishments had an
application -- or had an approval to have a permit for
background music in their establishment?
A No, not offhand. I mean, there were other
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25 establishments that had use permits for live
entertainment. How many? I can't say offhand, but there were others that did have use permits.
Q Did Mr. Richardson ask your opinion on what you
felt about his position on reducing the hours?
A No.
Q Was there any discussion of reducing the hours
less than what he did?
A No. He was only interested in reverting back to
the original conditions.
Q Was there any discussion regarding the Type 47
license?
A No.
Q So it was as simple as you went in and talked
with him, and he gave you what needed to be done, and then you walked out from that meeting?
A Correct.
Q Did you, at any time thereafter, communicate to
Mr. Puma that the 2008 CUP hours had been changed at the direction of Mr. Richardson?
A I provided him with the approval letter with the
changes in bold for the hours of operation. And as far as going to his place of business or calling him or any other thing to specifically have a face-to-face discussion about that, or phone call or anything else, I don't recall
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25 having done that.
But my recollection was that Patrick Richardson
had already had those discussions. Now, this is just me assuming -- not even assuming, because Patrick indicated that he had discussions with Mr. Puma, but I wasn't a part of those, so I don't know whether or not those discussions occurred, did not occur, or what those discussions were if they did occur.
So my understanding at that time was that all of
that had already been discussed, and that Mr. Puma knew what Patrick's direction was.
Q And what do you base that on?
A Based on the input or the direction from Patrick
Richardson.
Q Did Mr. Richardson tell you he had communicated
that to Mr. Puma?
A He told me that he had been in communication with
Mr. Puma, but he did not specify to me what his
discussions were, so I can't really say exactly what was communicated.
Q In looking at -- bear with me for a second. So
if you could look at Exhibit 9, which the body, it starts on Bates A-44.
A Okay.
Q That letter there addressed to Mr. Puma bears
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25 your signature; correct?
A Correct.
Q So you not only signed it, but you prepared the
contents of the letter?
A Correct.
Q Anywhere in this letter does it say that hours
that The Bank had been operating on under since 2008 had now been changed back to the 2007 CUP?
A Yes, Condition of Approval No. 12 states that.
Q I'm sorry, sir. I'm just talking about the
letter?
A That's an attachment to the letter.
Q I understand that. I am talking about the body
of the letter itself, is there anything in there that
points to the hours being changed?
A I think we can both see in there that -- I'm not
reading it. I don't see that, so, no.
Q Is there any reason that you would not have put
that in the letter?
A I suppose I could have listed all of the
conditions of approval in the letter, but it was an
attachment to the letter, so -- there was other things
that had changed as far as the reverting back to the
original approval. The reason for it would be that it
would be an extensive list of changes when you can just www.di Irelowesassociates.com
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25 attach the revised conditions of approval.
Q What else changed?
A I would have to go back and look at each and
every condition of approval, but I'm going to assume that the numbering on the conditions aren't the same. So I
would assume that there were some other conditions that were probably different.
Q All right. Aren't a lot of those just
boilerplate paragraphs?
A Some of them.
Q But you -- at the time you drafted this letter,
you know that Mr. Puma had gone to the trouble of filing a minor modification to the CUP in 2008 to extend his hours; correct?
A Correct.
Q And the hours that you were reducing him by
amounted to almost 26 hours in a week. That's almost two operating days, isn't it?
MS. PETRUSIS: Objection. Lacks foundation.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Yeah.
Mr. Callaway, I'm not sure where you are going
with this as far as specifically the hours. I think the documents speak for themselves. We can all do the math.
BY MR. CALLAWAY:
Q As far as the preparation of final conditions of
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25 approval, is that something that you would have done yourself?
A Yes, it was. Again, at the direction of
Mr. Patrick Richardson, following his direction, I would have put those conditions together based on the 2007
approval.
Q And did you do that by block copying?
A Most likely I would have opened the previous
conditions and then utilized those to modify and add in the condition for the live entertainment rather than
retyping each and every one of them, since Mr. Richardson had directed me to reuse all of the conditions anyway.
Q So after you generated this letter, you would
have sent this package out to Mr. Puma?
A Correct.
Q And at that time, you would have been under the
belief that The Bank could not operate past 11:00 p.m. at the latest on any night; correct?
A Correct.
Q Mr. Puma testified that he, on numerous
occasions, routinely, in fact, would operate beyond
11:00 o'clock, and oftentimes up until 2:00 a.m., are you aware of him ever doing that?
A No, I was in bed well before then, I can assure
you.
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25 Q So for eight years, were you never aware that
Mr. Puma and The Bank would have been in violation of the 2012 minor modification to the CUP?
A Correct, yes.
Q Okay. You testified earlier that a DJ needs a
CUP; is that correct?
A Correct.
Q What area do you cite to support that conclusion?
A It would be in the specific plan under anything
for live entertainment.
Q What was it about the drag show that you felt
would have been a violation of the CUP?
A Well, the CUP language for the live indoor
entertainment is very specific about a keyboard or other instrument played with one vocalist for the purpose of
providing background music permitted from noon until
10:00 P.M.
So just beginning with the times that that
occurred, not in conformance. And then nothing about a
drag show would be in relationship, to my knowledge, with one keyboard or other instrument played with one vocalist.
It sounds quite different to me, so that's why I had said that.
Q After the 2012 application was approved, did
Mr. Richardson ever communicate to you that The Bank was www.di"2jlnesassociates.com
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25 operating in hours in violation of their CUP between 2012 and 2021?
A No, sir. Mr. Richardson, I think, left,
approximately, in 2013. I don't have a specific date,
but -- so, no, he wasn't here that long after that
approval. And in the time that he was here, he never
mentioned anything about The Bank not operating per their use permit.
MR. CALLAWAY: Okay. No further questions, your
Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay. Any
cross-examination, Ms. Martyn or Mr. Edwards?
MR. EDWARDS: Your Honor, first, I have an
ethical obligation to disclose something that case law is clear. While this gentleman was testifying, I got a text.
I didn't know who the text was from, and I don't know
completely what it relates to, but I said, "Who and what is this?" And it said, "Amanda, from The Bank," and it
makes a comment about the case. And I think it probably was intended for her counsel, and I wrote back and said, "I cannot talk to you. You have a lawyer." But I didn't want to interrupt the examination, but I'm obligated to speak up.
for that.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Thank you
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25 MR. EDWARDS: They may want to speak up, but with
your permission, I'm going to erase this.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Yes,
delete the communication.
Mr. Edwards, any cross-examination?
MR. EDWARDS: Yes, I do have cross-examination,
your Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay.
MR. EDWARDS: I understand this is painful and
it's late. And I promise --
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Yeah. How
much do we have, Mr. Edwards? I'm not sure how much you intend to go into this, because if it's too much, we are going to go into another day. And I don't mean to
threaten you with that. I don't want to go too late.
MR. EDWARDS: I do not mind at all being
threatened. It is a constructive threat. But here's the bottom line, I don't know what the answers are going to be. I'll try my darnedest to do it in 10 minutes because I want to try to maintain good will with you, I'm going to suggest that we not do the closing arguments today, and I'll tell you why --
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Hold on a
second, and I'll address that. But what I can do to
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25 closings, and I might very well do that because we are out of time. I think that is something I'm going to do
because we're getting late here. Otherwise, we will have to come back for another day just for closing, and I think that's a bit of a waste. I think I will order the parties to do a closing in writing.
MR. EDWARDS: That sounds great.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Any
problems with that, Mr. Callaway and Ms. Petrusis?
MS. PETRUSIS: No, we are fine with that.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Because if
we have an issue with that, I will continue it to another day right now instead of wasting any more time today.
MS. PETRUSIS: No, we are fine with written
closings.
MS. MARTYN: Question? Would you like us to
suggest parameters for page numbers, et cetera?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: I'll get
to that when I get to the closing. And I have some
instructions to give to folks after that too.
Mr. Edwards, go ahead.
CROSS-EXAMINATION
BY MR. EDWARDS:
Q Mr. Fisk, can you see me?
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25 A Yes.
Q I'm not seeing you.
A You don't see me here?
Q I see you now. Okay. I'm going to try to work
with you so we get done, so give my your best shot.
Here's mine. You said Mr. Puma was on our board, what
board is that?
A Old Town Local Review Board.
Q Was he a friend of yours?
A I wouldn't say he was a friend, but he was, I
guess you could say, a colleague in a way, being on the board. He was someone that I was very familiar with being a business owner here in town, and so we had a business relationship.
Q When did you first learn the hours were reduced?
A I'm not sure I understand the question.
Q Let me ask -- that's an excellent answer. The
CUP issued in 2012 reduced the operating hours of
The Bank; correct?
A Correct.
Q And you put that CUP together; correct?
A Yes, sir.
Q Now, when did you first learn that that CUP in
2012 reduced the previous operating hours?
A From my discussion with our director, Patrick
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25 Richardson, when he gave me the direction to do so.
Q And that's before you finalized the 2012 CUP; am
A It would have been shortly after Mr. Puma had
applied for his application.
Q Now, here's my question for you, and I think you
can answer this. If not, tell me. When Mr. Puma
submitted this and then you gave him -- he's applying for a vocalist, background music; right?
A Right.
Q And that's all he's applying for. He's not
asking for any other modification. Does that, in your
understanding, allow you to make any modifications that you want to the existing CUP so long as you accommodate his specific request?
A Anytime an applicant opens a CUP, which he does
so by applying for changes to it, we can reassess and look at any mitigating factors that need to be taken care of, and we can take care of that through conditions of
approval. So, yes, when a Conditional Use Permit is
opened, we do have the ability to go in and make changes to the conditions beyond what they're asking for.
Q So you can change it, and you don't tell him
necessarily that we've changed it. I realized you sent
him a letter. Did I understand correctly that you bolded www.diIre3472.9882
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25 the changes so he could look at the CUP and see it?
A Correct.
Q Did he have any ability to say, "Wait a minute.
I want what I had before"?
A Yes. He could have appealed that decision. And
if Mr. Richardson wouldn't have been open to hearing his appeal, he could have appealed that to the planning
commission. If the planning commission denied him, he
could have appealed it to the city council.
Q Okay. But, nonetheless, by opening up the CUP,
he was at the City's mercy; is that your understanding? A So to speak.
Q I understand. I am being colloquial. Okay, now,
you don't know if anybody told him -- and I realize you sent him a letter and it was bolded, but you didn't tell him, "Hey, your hours are being changed"? Am I correct? A That is correct.
Q Okay. And to your knowledge, nobody else did.
You understand he was in communication with
Mr. Richardson, but you don't know if Mr. Richardson told him your hours are being changed?
A It was my understanding at that time that they
had had that discussion, Mr. Richardson and Mr. Puma, but I cannot either confirm or deny that.
Q Okay.
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25 A Because I wasn't a party to any such discussions.
Q And what I typed -- and I may not have typed fast
enough. What I typed -- and tell me if I misstate your
testimony. Patrick said he had discussion with Mr. Puma, but you don't know what those discussions were?
A That is correct.
Q Did I miss something?
A That is correct. Like I said, I was not a part
of those discussions, so I really wouldn't have any idea, and it would be hearsay even if he told me.
Q Fair enough. Now, did you ever talk to
Mr. Watson about the change in hours or e-mail with him? A It's possible, but not to my recollection.
Q When the current revocation proceeding started,
did you review any internal City e-mails discussing the hours that had been permitted?
A I did. And I provided documents to our City
Attorney.
Q Yes, I'm not questioning your ethics or what you
provided, but did you see in there that Mr. Watson was
saying he was surprised by the limited hours?
A No.
Q You did not. Okay. I want to thank you very
much for hanging in there.
MR. EDWARDS: I have no further questions.
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25 ADMINISTRATIVE LAW JUDGE NYE-PERKINS: All right.
Any redirect, Ms. Petrusis?
MS. PETRUSIS: No.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: All right.
Any other questions, Mr. Callaway?
MR. CALLAWAY: I do. I have two quick questions
if I could recross?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay.
Very briefly, Mr. Callaway.
MR. CALLAWAY: I appreciate it, your Honor.
Thank you.
RECROSS-EXAMINATION
BY MR. CALLAWAY:
Q Mr. Fisk, is it your testimony that in the 2012
final conditions of approval, that you prepared those;
correct?
A Correct.
Q And is your testimony that you bolded those to
bring them to the attention of Mr. Puma?
A I would have bolded those to bring them to the
attention of anybody who was reading them, whether it was a restaurant manager or someone from code enforcement. It was for everybody's purpose to know and see that
specifically.
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25 Q So is it your testimony that you would have
bolded Section 12 because the hours had been changed, and therefore, you wanted to make sure that Mr. Puma was
aware?
A Yeah. I don't know what the -- that I can go to
that specific level. Again, I'm saying that I bolded it for everybody's benefit, so that anybody looking at it, it would kind of jump out at them that the hours of operation were what they were. So I can't tell you that I did that just for Mr. Puma's benefit. It was really for anybody
who was looking at those conditions.
Q So do you have a recollection that when you
prepared this that you went in and bolded part of
Section 12 when you prepared this? That you blocked
copied the '07, and you then went in and bolded this
section; is that your recollection?
A I'm going to take a quick look at those
conditions from 2007.
MR. CALLAWAY: If you could, your Honor, I'm just
asking what his recollection is in looking at this
document?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Well, he
testified he bolded it, but I'm not sure if you're asking after he cut and pasted it. Frankly, I'm not sure what
the relevance of that question is, but he said he already www.dilrOdMnnesassociates.com
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THE WITNESS: Really, to answer the question, it
was a copy and paste with the bolding already on it.
BY MR. CALLAWAY:
Q That's right. So you went in and saw that it had
already been bolded; correct?
A Correct.
MR. CALLAWAY: Nothing further. Thank you, your
Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Any follow
up, Mr. Edwards?
MR. EDWARDS: Wouldn't dare.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay.
Ms. Petrusis?
MS. PETRUSIS: No, your Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay. Any
further witnesses, Ms. Petrusis?
MS. PETRUSIS: No.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: All right.
With that, obviously, it's time for closing statements.
It is 5:32. I don't think we have time for closing
statements, so what I will order the parties to do is to submit written closing statements. Now, you need to be
brief. I don't need a 500-page document -- or if you want to write a 500-page document, keep in mind, I'm not
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25 reading it all.
Please be realistic here on the length. With
regard to that, I'm not going to give you any page limits or any spacing limits, but if you are going to send me a novel, keep in mind, I'm likely not going to read it all.
I simply don't have that kind of time.
Speaking of timing, how long do you folks think
you will need to get me that? Because, Ms. Petrusis, you have the burden of proof here, so I would like to give you a brief rebuttal in the closing because of that. So if I set a deadline for when you can get me these closing
statements, what do you think you can do?
MR. EDWARDS: May I ask a question? I'll be
quick. I don't want to tell you so and so said so and so.
I want to show it to you. I want a transcript, and a
transcript is being made. And I'm not going to oversight a transcript. If you don't want one --
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: I don't
need that. That's not necessary. I think you can make a closing argument without the transcript. We don't have to wait for the court reporter to do that, plus, I'm not sure who is paying for that transcript. So if you want to pay for it, that's fine. But I don't feel the need to have a transcript in front of me. I take very good notes, so I can remember exactly what was testified to. I don't want www.dilrOC"Pnesassociates.com
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25 to wait for the transcript for the closing statements.
Having said that, Ms. Petrusis, how long will it
take you to get me your closing?
MS. PETRUSIS: I can get you the closing by the
end of business, Tuesday, September 6th.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay. So
if you get the closing then, then I'll allow both
Mr. Callaway and Mr. Edwards to provide me their closings thereafter. How long would you need, Mr. Callaway and
Mr. Edwards?
MR. EDWARDS: I'd like to have until
September 12th just because of my schedule that week.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay. Is
that okay with you, Mr. Callaway, the 12th?
MR. CALLAWAY: I can certainly do it within that
time period, yes, your Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: And then
Ms. Petrusis, how about rebuttal after that?
MS. PETRUSIS: I'm looking at my hearing
schedule. Is the 19th too long? I've got hearing on the 14th, 15th, and 16th.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: It's fine
with me. I don't care one way or the other. So the 19th for rebuttal. Now, Temecula Municipal Code allows me 10 days to write this decision. I will tell you guys, that www.di .esassociates.com 276
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25 is absolutely not enough. I cannot do this in 10 days.
I'm sure you are all aware I have other cases and I have other decisions to write and that is just not possible.
There's far too much for me to go through to do that.
So after I receive your rebuttal closing on the
19th of September, Ms. Petrusis, I will consider this case officially submitted. And after that, I typically have 30 days with which to provide my decision. Okay. Now, that takes us to October the 19th.
So, now, I will get my decision in faster if at
all possible, but I will set a deadline of 30 days. If
the parties have objections, raise them now.
MR. EDWARDS: None.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS:
Mr. Callaway?
MR CALLAWAY: No, your Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay.
Ms. Petrusis?
MS. PETRUSIS: No, your Honor.
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Okay. And
in that case, 30 days is what I'm going to give myself to get this decision and get it submitted as a proposed
decision.
So having said that, Ms. Petrusis, you have until
September 6th, close of business, to provide a written
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25 closing statement to the Office of Administrative
Hearings. File it like you would any other document. Do not put it in CaseLines. File it like you would a motion.
Make sure everyone is served. I don't want to have to
deal with communication and have to deal with that after the fact.
Mr. Callaway and Mr. Edwards, your closing is due
September 12th, close of business, to be filed with OAH.
Please make sure you serve all other parties.
And, then, Ms. Petrusis, your rebuttal closing is
due September 19th. You get that because you have the
burden of proof. That also should be filed with OAH by
close of business. Please make sure all parties are
served.
After that, then the record will be closed and
the matter will be submitted, and I will have 30 days to provide my decision to the City at that point.
MS. PETRUSIS: Your Honor, can you just say the
magic words that the public hearing is closed?
ADMINISTRATIVE LAW JUDGE NYE-PERKINS: I'm about
to do that in just a moment. I know we are still on the record. Is there anything else anyone needs to address
while we are on the record?
MS. PETRUSIS: No, your Honor.
MR. EDWARDS: Nothing.
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25 ADMINISTRATIVE LAW JUDGE NYE-PERKINS: All right.
With that, thank you all for your time and effort in
putting this all together. I know this was a lot of work.
With that, the matter is submitted. The record is closed.
The public record is closed. Off the record.
(The hearing adjourned at 5:37 p.m.)
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25 HEARING REPORTER'S CERTIFICATE
I, Shelby K. Maaske, Hearing Reporter in and for
the State of California, do hereby certify:
That the foregoing transcript of proceedings was
taken before me at the time and place set forth, that the testimony and proceedings were reported stenographically by me and later transcribed by computer -aided
transcription under my direction and supervision, that the foregoing is a true record of the testimony and
proceedings taken at that time.
I further certify that I am in no way interested
in the outcome of said action.
I have hereunto subscribed my name this 29th day
of September, 2022.
SHELBY K. MAASKE
HEARING REPORTER
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FEMERMWA
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"�..... s OFFICE OF ADMINISTRATIVE HEARINGS state of California gyp•-..-'eun r'w'.-_,..
P EXHIBIT / WITNESS LIST
w a
OAH 23 (rev. 2/03)
OAH No. 20220501021
trFanw�
ALJ: Nye -Perkins Agency No.
Agency / Complainant: The City of Temecula Case Name / Respondent: The Bank; Zip Third Investments, L.L.C.
Attorney /Rep.: Jennifer Petrusis Attorney /Rep.: Thomas J. Callaway; Elizabeth L. Martyn and Ricard Edwards
Evidence
Evidence
Marked
Hearing Dates: August 31, 2022 and September 1, 2022
Admitted
Marked
Admitted
forI.D.
Date-Ax-
forI.D.
Evidence Offered -(via Witness)
Date-Ax-
Jurisdiction
Evidence Offered - via Witness)Jurisdiction
1. TMC Section 17.03.085 bates no. A2 to A4.
Official
A.
CUP application no. PA07-0314 and conditions of
Not
Notice
approval bates no. D4 to D30.
Admitted
2. TMC Section 17.03.010 bates no. A6 to AT
Official
B.
Minor Modification Application no. PA08-0236
Not
Notice
with conditions of approval bates no. D32 to D49.
Admitted
3. TMC Section 17.03.090 bates no. A9 to A10.
Official
C.
Minor Modification Application no. PA12-0041
Not
Notice
with conditions of approval bates no. D51 to D64.
Admitted
4. CUP application no. PA07-0314 bates no. Al2 to
X
D.
Letter dated April 13, 2022, with attachments
Not
A13.
bates no. D66 to D107.
Admitted
5. DH Resolution No. 08-001 bates no. Al to A27.
X
E.
Letter dated April 18, 2022, with attachments
Not
bates no. D 109 to D 147.
Admitted
6. Minor Modification Application no. PA08-0236
X
F.
Letter dated May 19, 2022, with attachments bates
Not
bates no. A29 to A30.
no. D149 to D183.
Admitted
7. Notification letter dated October 15, 2008, with
X
G.
Email correspondence bates no. D185 to D187.
X
attachments bates no. A32 to A38.
8. Minor Modification Application no. PA12-0041
X
H.
Email correspondence bates no. D189 to D194.
X
bates no. A40 to A42.
9. Notification letter dated February 28, 2012, with
X
I.
Email correspondence bates no. D196 to D197.
X
attachments bates no. A44 to A49.
10. Administrative Citations bates no. A51 to A85.
X
J.
BSIS licensure page bates no. D199.
Not
Admitted
]L
Civil Penalty letters bates no. A87 to A196.
X
K.
Calls for police service at the Bank bates no.
X
D200.
12. August 20, 2021, letter to Zip Third bates no.
X
L.
Calls for police service at Stampede bates no.
X
A198.
D201.
13. Letter dated May 19, 2022, with attachments bates
X
M.
Calls for police service at Old Town Pub bates no.
X
no. A200 to A234.
D202.
14. Letter dated July 8, 2022, with attachments bates
X
N.
Calls for police service at Adelaide bates no.
X
no. A236 to A271.
D203.
15. Flyer for "Unleashed Summer Party Kickoff'
Not
O.
Calls for police service at Baileys bates no. D204.
X
bates no. A273.
Admitted
16. P.
Calls for police service at Black Bird bates no.
X
D205.
rl.
Q.
_-
Citation summary bates no. D206 to D242.
Not
1639
Admitted
18. R.
19. S.
20. T.
21. U.
22. V.
23. W.
24. X.
25. Y.
26. Z.
27. AA.
Lease document bates no. BI to B27.
Not
Admitted
28. BB.
CUP application no. PA07-0314 and conditions of
approval bates no. B28 to B54.
Not
Admitted
29. CC.
Minor Modification Application no. PA08-0236
with conditions of approval bates no. B55 to B72.
Not
Admitted
30. DD.
Minor Modification Application no. PA12-0041
with conditions of approval bates no. B73 to B86.
Not
Admitted
31. EE.
Email correspondence bates no. B87 to B232.
Not
Admitted
32. FF.
Final conditions of approval for the 2012 CUP
bates no. B2333 to B239.
Not
Admitted
33. GG.
Email correspondence bates no. B240 to B323..
Not
Admitted
34. HH.
Redacted code violation reports bates no. B324 to
B327.
Not
Admitted
35. II.
Email correspondence bates no. B327 to B376.
Not
Admitted
36. JJ.
Letter dated May 5, 2022, bates no. B377 to B378.
Not
Admitted
37. KK.
Letter dated May 19, 2022, with attachments bates
no. B379 to B413.
Not
Admitted
38. LL.
Email correspondence bates no. B414 to B429.
X
39. MM.
Code report and citations bates no. B430 to B447.
Not
Admitted
40. NN.
Email correspondence bates no. B448 to B758.
Not
Admitted
41. 00.
Public record reports bates no. B759 to B768.
Not
Admitted
42. PP.
Bankruptcy court filings bates no. B769 to B811.
X
43. QQ.
Summary of citations and citations bates no. B812
to B831.
Not
Admitted
1 VfFV
44. RR.
Order setting deadline for response to motion for
Not
continuance bates no. B832 to B833.
Admitted
45. SS.
Notice of Public Hearing bates no. B834 to B835.
Not
Admitted
46. TT.
Minor Modification Application no. PA12-0041
Not
with conditions of approval bates no. B836 to
Admitted
B849.
47. UU.
Lease agreement bates no. B850 to 13876.
Not
Admitted
48. W.
Declaration and attachments bates no. B877 to
Not
B958.
Admitted
49. WW.
Bankruptcy filing bates no. B959 to B971.
Not
Admitted
50. XX.
Redacted code enforcement document bates no.
Not
B972.
Admitted
51. PP.
Email correspondence bates no. B973 to B974.
Not
Admitted
52. ZZ.
TMC section 17.04.010 bates no. B975 to B978.
Not
Admitted
53. AAA.
May 19, 2022, letter with attachments bates no.
Not
B979 to B1013.
Admitted
54. BBB.
Email correspondence bates no. B 10 14 to B1022.
Not
Admitted
55. CCC.
Return mail receipt bates no. B 1023.
Not
Admitted
56. DDD.
Letter dated July 26, 2022, bates no. B1024 to
Not
B 1025.
Admitted
57. EEE.
Public records request bates no. B 1026 to B 1029.
Not
Admitted
58. FFF.
Letter dated August 23, 2022, bates no. B1030 to
Not
B 1031.
Admitted
59. GGG.
Declaration bates no. B1032 to B1038.
Not
Admitted
60. HHH.
Bankruptcy court order bates no. B1039 to B1041.
X
61. III.
Declaration bates no. B1042 to B1051.
Not
Admitted
62. Mi.
Email correspondence bates no. B1052 to B1054.
Not
Admitted
63. KKK.
Email correspondence bates no. B1055 to B1056.
Not
Admitted
64. LLL.
1641
# 20
1642
PC RESOLUTION NO.2023-
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF TEMECULA CONFIRMING THE DECISION
OF ADMINISTRATIVE LAW JUDGE NYE-PERKINS TO
REVOKE THE CONDITIONAL USE PERMIT ISSUED TO
THE BANK, LOCATED AT 28645 OLD TOWN FRONT
STREET
Section 1. Procedural Findings. The Planning Commission of the City of Temecula does hereby find, determine and declare that:
A. In November 2007, Craig Puma from CNC Puma Corporation submitted an application to the City for a Minor Conditional use Permit on behalf of the Bank of Mexican Food Restaurant (the Bank") located at 28645 Old Town Front Street in Temecula (the "Property").
B. On January 3, 2008, the Planning Director approved Planning Application No.
PA07-0314, a Minor Conditional Use Permit to upgrade a Type 41 ABC License (On -sale beer and wine -eating place) to a Type 47 ABC License (on -sale general) to authorize the sale of beer, wine and distilled spirits at the Bank.
C. On October 9, 2008, the Planning Department approved Planning Application No.
PA08-0236, a Minor Modification to Minor Conditional Use Permit (PA07-0314) to extend the hours of operation for the sale, service and consumption of alcohol at the Bank.
D. On February 28, 2012, Planning Department approved Planning Application No.
PA12-0041, a Minor Modification to Minor Conditional Use Permit (PA07-0314) to allow for dinner entertainment for the purpose of providing background music at the Bank. Minor Conditional Use Permit (PA07-0314), as modified on October 9, 2008 (PA08-0236) and on February 28, 2012 (PA12-0041) will be referred to hereinafter as "CUP".
E. Beginning in March 2021, the City's Code Enforcement Division issued 109 Civil Penalty Notice and Orders to the CNC Puama Corporation due to violations of the CUP including for violating approved operational hours beyond 11:00 p.m., having excessive noise levels including with outside speakers over allowed noise levels, and failing to have a CUP for amplified music and live entertainment.
F. On May 19, 2022, the Planning Director sent a notice to CNC Puma Corporation, the Bank and Amanda Moore, who is an officer of CNC Puma Corporation and manager of the Bank, advising that he was recommending that the Conditional Use Permit issued to the Bank be revoked. The City subsequently sent a notice to Zip Third Investments, LLC, the owner of the Property, and advised that the Planning Director was recommending that the CUP be revoked.
G. Consistent with Temecula Municipal Code section 17.03.085, the revocation proceeding was held at a noticed public hearing before the State Office of Administrative Hearings with Administrative Law Judge Nye -Perkins presiding on August 31, 2022 and September 1, 2022. 1643
H. On or about October 19, 2022, Judge Nye -Perkins issued an order revoking the CUP. A copy of the Order is attached hereto as Exhibit "A" as if set forth in full herein, I. On February 15, 2023, the Planning Commission held a duly noticed public hearing as prescribed by law, at which time the City staff, representatives from CNC Puma, Zip Third Investments, LLC and interested persons had an opportunity to and did comment on whether the Planning Commission should confirm, modify or overrule the Order.
J. All legal preconditions to the adoption of the Resolution have occurred.
Section 2. Findings.
A. The Planning Commission of the City of Temecula hereby adopts the Endings of fact and conclusions of law issued by Judge Nye -Perkins in the October 19, 2022 decision revoking the CUP, which is attached hereto as Exhibit "A" as if set forth in full.
B. Pursuant to Temecula Municipal Code section 17.03.085, the Planning Commission hereby confirms the decision of Administrative Law Judge Nye -Perkins revoking the CUP issued to CNC Puma d.b.a The Bank and to Zip Third Investments, LLC.
PASSED, APPROVED AND ADOPTED by the City of Temecula Planning Commission this 15th day of February, 2023.
ATTEST:
Luke Watson
Secretary
[SEAL]
Lanae Turley-Trejo, Chairperson
z
1644
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )ss
CITY OF TEMECULA )
I, Luke Watson, Secretary of the Temecula Planning Commission, do hereby certify that the foregoing PC Resolution No. 2023- was duly and regularly adopted by the Planning Commission of the City of Temecula at a regular meeting thereof held on the 151h day of February 2023, by the following vote:
AYES: PLANNING COMMISSIONERS:
NOES: PLANNING COMMISSIONERS:
ABSTAIN: PLANNING COMMISSIONERS:
ABSENT: PLANNING COMMISSIONERS:
Luke Watson
Secretary
3 1645
DianDiannc jonc,,s & A� ocia.t s
Reporting and Videography
P.O. Pox 1736
Pacific Palisades, California 90272
310.472.9882
BEFORE THE PLANNING COMMISSION
OF THE CITY OF TEMECULA
IN THE MATTER OF THE REVOCATION OF )
THE CONDITIONAL USE PERMIT OF THE )
BANK AND ZIP THIRD INVESTMENTS, LLC, ) PUBLIC HEARING
AND CONSIDER PROPOSED DECISION OF )
THE OFFICE OF ADMINISTRATIVE HEARINGS)
TRANSCRIPT OF PROCEEDINGS
Temecula, California
Wednesday, February 15, 2023
Reported by:
AMANDA KARMANN
HEARING REPORTER
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PAM
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BEFORE THE PLANNING COMMISSION
OF THE CITY OF TEMECULA
IN THE MATTER OF THE REVOCATION OF )
THE CONDITIONAL USE PERMIT OF THE )
BANK AND ZIP THIRD INVESTMENTS, LLC, ) PUBIC HEARING
AND CONSIDER PROPOSED DECISION OF )
THE OFFICE OF ADMINISTRATIVE HEARINGS)
Transcript of Proceedings, taken at
Temecula City Hall, 4100 Main Street,
Temecula, California, beginning at 10:00 a.m. and
ending at 1:55 p.m. on Wednesday, February 15, 2023,
heard before City of Temecula Planning Commission,
reported by Amanda Karmann, Hearing Reporter.
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25 APPEARANCES:
For the CITY OF TEMECULA:
RICHARDS WATSON & GERSHON
BY: JENNIFER PETRUSIS, ESQ.
350 S. Grand Avenue
37TH Floor
Los Angeles, California 90071
213-626-8484
[email protected]
For ZIP THIRD INVESTMENTS, LLC:
RICK EDWARDS, INC
BY: RICK EDWARDS, ESQ.
1925 Century Park East
20th Floor
Los Angeles, California 90067
310-277-6464
[email protected]
For CNC PUMA CORPORATION AND THE BANK:
MILLIGAN BESWICK LEVINE & KNOX, LLP
BY: JAMES F. PENMAN, ESQ.
1447 Ford Street
Suite 201
Redlands, California 92374
909-798-3300
[email protected]
For THE TEMECULA PLANNING COMMISSION
MEYERS NAVE
BY: DEBORAH J. FOX, ESQ.
707 Wilshire Boulevard
24th Floor
Los Angeles, California 90017
213-626-2906
[email protected]
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25 APPEARANCES CONTINUED:
PLANNING COMMISSION MEMBERS:
Bob Hagel
Adam Ruiz
Fernando Solis
Lanae Turley-Trejo
Gary Watts
PUBLIC SPEAKERS:
Steven Slaughter
Cesar Rodriguez
Rod Parent
Deshai Tibbs
Chris Cuipo
Shawn Owens
ALSO PRESENT:
Denise Jacobo, Commission Secretary
Luke Watson, Deputy City Manager
Tyler Sherman
Amanda Lane, The Bank
General Public, not identified
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25 I N D E X
PRESENTATION SPEAKERS: PAGE
Ms. Petrusis 9
Mr. Penman 26, 142
Mr. Edwards 76, 144
REBUTTAL SPEAKER: PAGE
Ms. Petrusis 117
PUBLIC SPEAKERS:
PAGE
Alan Ronska (E-mail)
126
Steven Slaughter
127
Cesar Rodriguez
129
Rod Parent
132
Deshai Tibbs
134
Chris Cuipo
136
Shawn Owens
138
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25 Temecula, California; Wednesday, February 15, 2023
10:00 a.m.
(The proceedings begin at 10:00 a.m. with
the Pledge of Allegiance.)
COMMISSIONER TURLEY-TREJO: Thank you,
Commissioner Watts.
Roll call, please.
MS. JACOBO: Vice Chair Hagel?
COMMISSIONER HAGEL: Here.
MS. JACOBO: Commissioner Ruiz?
COMMISSIONER RUIZ: Here.
MS. JACOBO: Commissioner Solis?
COMMISSIONER SOLIS: Here.
MS. JACOBO: Commissioner Watts?
COMMISSIONER WATTS: Here.
MS. JACOBO: And Chair Turley-Trejo?
COMMISSIONER TURLEY-TREJO: Here.
Thank you, Denise.
Do we have any public comments on non -agenda
items?
MS. JACOBO: We have received none.
COMMISSIONER TURLEY-TREJO: Okay. Thank you.
Okay. So today we are conducting a hearing
in the matter of the revocation of the Conditional
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25 Use Permit of The Bank and Zip Third Investments, and consider a proposed decision of the Office of
Administrative Hearings.
The recommendation is that the
Planning Commission conduct a public hearing in the
matter of the revocation of the Conditional Use
Permit of The Bank and Zip Third Investments,
consider the proposed decision of the Office of
Administrative Hearings, and render a decision
upholding or denying the proposed decision. This
hearing is proceeding under Temecula Municipal
Code Section 17.03.085.
All right. I will open the public hearing.
I am going to go ahead and read the rules for the
public hearing.
Any person may submit written comments to the
Commission before a public hearing or may appear and
be heard in support of or in opposition of the
approval of the projects -- project or projects at
the time of the hearing.
If you challenge any of the projects in
court, you may be limited to raising only those issue
you or someone else raised at the public hearing or
in written correspondence delivered to the Commission
secretary at or prior to the public hearing.
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25 For public hearings, each speaker is limited
to five minutes. Public comments may be made in
person at the meeting by submitting a speaker card to
the Commission secretary or by submitting an e-mail
to be read out loud into the record at the meeting.
E-mail comments must be submitted to
[email protected]. E-mail comments
on all matters, including those not on the agenda,
must be received prior to the time the item is called
for public comments.
Any person dissatisfied with the decision of
the Commission may file an appeal of the Commission's
decision. Said appeal must be filed within 15
calendar days after service of written notice of the
decision.
The appeal must be filed on the appropriate
community development department form and be
accompanied by the appropriate filing fee.
All public participation is governed by the
council policy regarding public participation at
meetings adopted by Resolution No. 2021-54.
Okay. So we will start with the attorney for
the City and have her present their case. Thank you.
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25 PRESENTATION SPEAKER
MS. PETRUSIS: Thank you. Okay. Great.
Good morning, Honorable Chairperson and
members of the Planning Commission. My name is
Jennifer Petrusis and I represent City staff in this
proceeding before you today.
Now, the purpose of this hearing is for the
Planning Commission to decide whether to confirm,
modify, or revoke -- I'm sorry -- or overturn an
independent hearing officer's decision to revoke the
Conditional Use Permit that was granted to The Bank
To quickly introduce this matter, City staff
seeks to revoke the CUP after issuing over 100
citations and civil penalties over the course of
17 months for violations that The Bank admits to
making.
An administrative law judge with the
California Office of Administrative Hearings heard
all of the evidence offered by the City, by the
owners and operators of The Bank Restaurant, and from
the owner of the property on which The Bank is
located, and decided that the CUP should be revoked.
Now, according to the Municipal Code, the
decision by the administrative law judge is
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25 automatically reviewed by the Planning Commission;
however, this isn't a full evidentiary hearing. The
parties will not be offering any new evidence at this
hearing today.
Pursuant to the Municipal Code, the
Planning Commission shall only consider the evidence
that was presented to the administrative law judge
and any new evidence offered by the public today.
To some of the City's position, given the
CUP, including admitted violations of its operating
hours, admitted violations of the approved hours to
sell alcohol, undisputed excessive noise violations,
and evidence that The Bank had become a disorderly
house in violation of its CUP, the Planning
Commission should confirm the administrative law
judge's decision to revoke the CUP.
I would like to next give you an overview or
roadmap for my presentation this morning, so first
I'm going to discuss a history of the CUP that was
requested by and issued to The Bank. I'm then going
to discuss the specific violations, the timeline of
those violations over the course of 17 months, and
the many, many citations and civil penalties that
were issued to The Bank.
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25 I'm then going to explain that City staff has
taken all of the necessary steps to comply with the
Municipal Code requirements to revoke the CUP, and
then I'm going to discuss the hearing that occurred
before the administrative law judge, the evidence
that was presented, and the ALJ's decision to revoke
the CUP.
So first, a history of the CUP that was
requested and issued. To begin, in November 2007,
Craig Puma of CNC Corporation -- I'm sorry -- CNC
Puma Corporation applied for a Minor Conditional Use
Permit for use by The Bank Restaurant, and in
January 2008 the planning director approved
PA07-0314.
Now, the purpose of that CUP was to upgrade
from a Type 41 ABC license to a Type 47 license so
that the restaurant could sell distilled spirits, and
then later that year, also in 2008, Mr. Puma sought
to modify the CUP to extend the hours that The Bank
could sell alcohol, and the Planning Department
approved that. That was PA08-0236.
Now, through this modification the restaurant
manager could decide to stay open past its regular
operating hours until 2:00 o'clock a.m., and on those
instances alcoholic beverages could be served until
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25 A few years later in 2012, Mr. Puma requested
another modification of the CUP so that he could have
certain live entertainment at the restaurant for
background music while dining, and the Planning
Department approved that, and that was PA12-0041;
however, the conditions of approval changed the
approved operating hours and there was no longer a
provision permitting the restaurant to stay open
Now, The Bank asserted at the administrative
hearing that the hours must have been changed back in
error; however, Planning Manager Stuart Fisk
testified at that hearing that he was involved in
that -- in the issuance of the 2012 minor
modification and that the director of Planning at the
time told him he would only approve the 2012 minor
modification application if the hours of operation
were set back to those of the original 2007 CUP.
The hours set forth in the 2012 conditions of
approval were not an accident, were not made in
error. They were purposely set.
So to be clear, there's only one CUP at issue
in this proceeding. It is 07-0314, which has been
modified twice at the request of Mr. Puma. The final
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25 conditions of approval for the 2012 modification are the current conditions of approval and they supersede
the first minor modification and the provision that
the restaurant could stay open until 2:00 a.m.
So I would like to now go over some of the
important relevant provisions of the current
conditions of approval for the CUP that are relevant
to this proceeding.
The approved hours are contained in
Condition No. 12, which is at page 113 in your agenda
packet. The restaurant must close by 10:00 p.m.
Monday through Thursday and on Sundays, and at 11:00
o'clock p.m. on Fridays and Saturdays.
The approved hours for sale of alcohol are
also in Condition No. 12, and they require the sale
of alcohol to cease by 10:00 p.m. Monday through
Thursday and on Sundays, and at 11:00 p.m. on Fridays
and Saturdays, and the consumption of alcohol must
cease one hour after these closing hours.
The Bank can have indoor entertainment
consisting of one keyboard or other instrument played
with one vocalist for the purpose of providing
background music from noon until 10:00 o'clock p.m.
That's in Condition No. 9.
And according to Condition No. 28C, as in
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25 cat, the licensed premises may not become a
disorderly house.
A disorderly house is defined in the
Conditions of Approval as a licensed outlet that
disturbs neighbors with noise, loud music, loitering,
littering, vandalism, urination, defecation,
graffiti, and/or has many ongoing crimes inside or in
the parking lot such as drunks, fights, assaults,
prostitution, narcotics, et cetera.
As part of its normal process, staff notified
Mr. Puma about his right to appeal the Conditions of
Approval. That document is page 111.
If Mr. Puma wasn't happy with the Conditions
of Approval imposed as part of the modified CUP, he
had 15 days from the date of the approval to appeal.
It is undisputed that Mr. Puma never appealed the
Conditions of Approval.
Now to discuss the violations of the CUP by
The Bank. The City first became aware of The Bank
operating outside of its approved operating hours
when they received a complaint from the Temecula
Police Department.
The police department had noticed problems
related to over -serving of alcohol at The Bank and
resulting disturbances caused by fights and public
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25 Code Enforcement Field Supervisor Tom Cole
began walking with police officers in the Old Town
area and he personally observed The Bank operating
outside of its approved operating hours and serving
alcohol past the approved hours.
Mr. Cole also observed customers of The Bank
falling down from intoxication and vomiting, and he
observed individuals picking a fight with Temecula
police officers, and all of this was happening after
11:00 p.m., which is the required closing hour.
The Temecula Police Department also noted on
many occasions individuals stopped for public
intoxication and arrested for DUI were telling them
that they were coming from The Bank.
The police department observed several
assaults per night happening in front of deputies and
in front of The Bank. They also noticed that
security guards from The Bank would push individuals
who were fighting away from the restaurant into the
street.
Most of these incidents occurred after
11:00 p.m., and a vast majority occurred closer to
midnight to 2:00 a.m., outside of the approved
operating hours.
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25 In January 2022 there was a shooting at the
The Bank who had worked at The Bank as a security
guard and who had a felony conviction at the time
that he was working at The Bank. That former
employee was killed. Three other individuals were
shot.
A few months earlier in November 2021,
another shooting occurred when patrons of The Bank
who were celebrating a birthday at the restaurant got
into a verbal altercation and a shooting occurred
approximately 50 to 100 feet down the sidewalk.
Mr. Cole determined The Bank was violating
the City's noise ordinances, and he used a decibel
reader to take noise readings.
Now, the permitted level of noise in Old Town
is 70 decibels. Mr. Cole would check noise levels
from an adjacent property at The Bank while a DJ was
observed playing after approved hours, and that level
was 95 on numerous occasions.
The Bank is permitted to have certain indoor
dinner entertainment consisting of, as I mentioned,
one keyboard or other instrument and one vocalist to
provide background music from noon until 10:00 p.m.;
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25 however, The Bank had a DJ with speakers pointed into the street intersection producing loud and excessive
noise in violation of the City's noise ordinance and
in excess of what live entertainment was permitted by
Beginning in March of 2021, Mr. Cole started
issuing citations to The Bank for violating the
approved operating hours beyond 11:00 p.m. and for
having excessive noise levels with outside speakers
in violation of the CUP and Municipal Code.
Mr. Cole issued 34 citations between March
and July of 2021. The violations continued, so
pursuant to the Municipal Code, Mr. Cole began
issuing civil penalty letters to The Bank which have
a higher fine amount.
He issued 109 civil penalty letters from
July 2021 up until we had our hearing before the
administrative law judge in August of 2022.
Now, on August 20th, 2021, shortly after
Mr. Cole started issuing civil penalties, Mr. Cole
sent a notice to Zip Third Investments LLC. That is
the company that owns the property on which The Bank
is located, and the purpose of this notice was to let
Zip Third know that its tenant, The Bank, was
violating the Temecula Municipal Code, including that
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25 it was operating in violation of the permissible
operating hours.
Mr. Cole never received a response from
Zip Third. Zip Third was then sent copies of each of
the civil penalty letters that were thereafter issued
to The Bank. All told, 97 civil penalty letters were
sent to Zip Third. They were copied.
City staff used the address for Zip Third
that is listed with the California Secretary of
State, and Mr. Solomon of Zip Third testified at the
hearing that this Wilshire address is the correct
None of these letters were ever returned as
So all told, staff issued over 100 citations
and civil penalties over the course of 17 months.
The Bank continued to violate the CUP even up until
we had the hearing before the administrative law
judge as part of this revocation process.
Now I'm going to talk about The Bank's and
Zip Third's reaction. So Craig Puma -- again, his
company is CNC Puma Corporation -- owns the
restaurant, and he was aware of the citations. He
testified he was aware of the citations.
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25 Amanda Lane is the president and CEO of that
corporation and she is the day-to-day manager of the
restaurant, and she also was aware of the citations.
In fact, she paid approximately $15,000 in fines as
she received citations and civil penalties.
Both of them contacted Luke Watson to claim
that the operating hours in the CUP were incorrect.
Mr. Watson explained, no, they're not, and he
provided the operating hours again to Mr. Puma. He
explained that they must file a minor modification
application if they wanted to change those approved
The Bank never applied. No one ever applied
for a minor modification to change the operating
hours, and certainly we know that Mr. Puma knew how
to do that because he had done that twice before with
the CUP.
No one ever appealed any of the citations for
civil penalties, and as I mentioned, a portion of
them were paid. The majority, though, have been left
unpaid and are delinquent.
Additionally, Mr. Cole had several
conversations with Ms. Lane over an approximate
18-month period regarding The Bank's violations of
approved operating hours. Ms. Lane never told him,
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25 though, that she would comply, and so Mr. Cole
continued to issue citations and civil penalties.
With all of this, City staff really had no other
choice but to proceed with this revocation action.
Now, Section 17.03.085 sets out the process
by which the City may revoke a CUP. It begins with
the planning director sending a notice to the permit
holders and to the city clerk that explains that he
is recommending the revocation of the CUP, and that
was done. That letter is at page 267 of your packet.
During testimony before the administrative
law judge, both The Bank and Zip Third admitted that
they had received this notice.
The next step in the process is to have a
public hearing before an independent hearing officer.
In this case, as I mentioned, the hearing was held
before an administrative law judge with OAH.
The ALJ received oral and written evidence
from all of the parties, heard testimony from
Mr. Watson, Mr. Cole, and Sergeant Hephner of the
Temecula Police Department, and from Planning Manager
Stuart Fisk regarding all of the violations.
The ALJ also heard testimony from the owners
and operators of The Bank and from a representative
from Zip Third.
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25 Of particular note, during the hearing before
the ALJ, the owner and operators admitted to
operating the restaurant until 2:00 a.m. Ms. Lane
testified that The Bank typically closed at 2:00 a.m.
on Fridays and Saturdays, and that on Sundays it
typically closed between 10:00 p.m. and midnight.
They admitted to selling alcohol past the
approved hours in the Conditions of Approval. They
admitted to having a live DJ that would perform
usually up until 1:00 a.m. depending on the day.
Ms. Lane also admitted to having drag show
performances at the restaurant.
During the hearing a private investigator
retained by the City testified that he went to The
Bank on July 10, 2022. This is after the planning
director sent the notice that he was recommending
revocation.
That investigator observed The Bank continue
to operate and sell alcohol after 11:00 p.m.
Notably, when the investigator went outside of the
restaurant to take a noise reading, he was approached
by two security guards from The Bank who threatened
to beat him up if he did not give him -- give them
his phone. They had apparently seen him taking
photographs from inside the restaurant.
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25 So there was evidence presented as 17 months'
worth of violations and that these violations
continued even after the City notified The Bank and
Zip Third that it intended to seek revocation of the
CUP.
As to Zip Third, Ms. Lane testified that she
contacted an individual with Zip Third in July of
2021 to inform him of the citations that were issued
from the City. As it turns out, this person is with
the property management company hired by Zip Third.
Mr. Solomon of Zip Third testified that his
office had received some of the civil penalties sent
to his office. He admits to receiving at least 16,
the earliest dated March 7, 2022, which was before
the planning director sent his notice.
Of course, it is City staff's position that
all 97 civil penalty letters were sent to Zip Third,
none of which were returned, but at the very least
Zip Third was on notice of the violations in March
2022, which was five months before the hearing before
the administrative law judge.
Based on the evidence presented by all of the
parties, the ALJ decided that the City had
demonstrated by clear and convincing evidence that
CNC Puma Corporation doing business as The Bank had
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25 frequently and continuously violated the approved
conditions of approval for its CUP.
Specifically the ALJ found that The Bank
violated Condition No. 12 by continuously operating
outside of its approved operating hours, that it
violated Condition No. 12 by selling alcohol to
customers at hours beyond the approved hours,
violated Condition No. 9 by having live entertainment
beyond that which was permitted in the CUP, and
violated Condition No. 28C by becoming a disorderly
The Bank argued that it did not realize the
approved hours had changed in the last modification.
The ALJ found that any mistaken beliefs about the
permitted hours did not absolve the violations, and
that is certainly City staff's position as well.
The ALJ also found The Bank had created loud
noise beyond what was permitted by the Municipal Code
and that law enforcement had established The Bank had
become a disorderly house in violation of the CUP.
The evidence presented to the ALJ established
a long history of intentional violations of the CUP.
We are not talking about a few isolated mistaken
violations.
What we have here is a restaurant that for
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25 over a year and a half refused to comply with the
CUP. No doubt The Bank does not want to close at its
approved operating hours and wants to stay open later
than 11:00 p.m. on Fridays and Saturdays, but it
decided to continue to violate rather than to go
through the proper process of applying for a minor
modification or even to appeal any of the citations,
any of the civil penalties.
City staff was left with no other option than
to bring this revocation action as the AL determined
the City has met its burden of establishing
violations of the CUP and that the CUP should be
revoked.
Accordingly, City staff requests that this
Planning Commission confirm the independent hearing
officer's decision to revoke the CUP.
Thank you very much, and I would like to
reserve the rest of my time for rebuttal.
COMMISSIONER TURLEY-TREJO: Thank you so much
for your presentation. You might want to stay there
in case we have questions for you as Commissioners
right now.
MS PETRUSIS: Of course.
COMMISSIONER TURLEY-TREJO: Okay. So thank
you for that presentation. It was very clear.
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25 So I'm going to start on my left with
Commissioner Ruiz.
COMMISSIONER RUIZ: Thank you.
Thank you, Ms. Petrusis. I did have a
question in reviewing the packet. There was the
2008, the original CUP acceptance signed by the
applicant.
2008 in the packet was presented, but there
was no signature, at least it didn't appear a
signature in our packet.
Was that ever signed?
MS. PETRUSIS: Do you mean the -- the 2012
Conditions of Approval, was that ever signed?
I don't -- if it's not in the packet, I don't
believe we have a copy of the signed --
COMMISSIONER RUIZ: Okay. Yeah.
MS. PETRUSIS: -- Conditions of Approval.
COMMISSIONER RUIZ: Yeah. I was just looking
for those two, the 2008 acceptance and the 2012 that
would be signed from the applicant acknowledging that
they accepted those terms to that CUP, that
modification.
MS. PETRUSIS: Right. And what we do have,
though, is evidence in the testimony that Mr. Puma
received the conditions of approval. He does not
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25 dispute that he ever received the Conditions of
Approval.
COMMISSIONER RUIZ: Thank you.
COMMISSIONER TURLEY-TREJO:
Commissioner Watts?
On this end? No questions?
No questions. Okay. Thank you very much.
MS. PETRUSIS: Thank you.
COMMISSIONER TURLEY-TREJO: We appreciate
that.
Okay. We will move on to the attorney for
The Bank and restaurant owner to present their case.
You also have 45 minutes if you need it.
PRESENTATION SPEAKER
MR. PENMAN: Thank you.
Mr. Ruiz, to answer your question, they did
not sign it. The Temecula Municipal Code provides
that they are to sign it, and our position is they
never did accept those conditions.
My name is James Penman. I was elected city
attorney for the City of San Bernardino for 26 years.
I've dealt with many of these cases.
When I was first hired on this one, I did my
usual practice, looked at the record, see if I needed
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25 to advise my clients they just need to say, Hey, the City is right, and go from there.
When I got on the record, I saw that wasn't
revoke the decision, to revoke the CUP, the planning
director relied on a great deal of incorrect
information given to him.
One of those things was that a murder that
occurred at The Bank could have been prevented by the
restaurant owners -- and that's in the testimony --
merely if they'd closed earlier, and Mr. Watson
testified to that.
The shooting occurred at 10:39,
10:40 a.m.[sic]. We just heard the city attorney say
that the restaurant was supposed to close at 10:00,
but patrons could continue to consume alcohol for an
hour afterwards.
The shooting occurred at approximately 10:40
according to Sergeant Hephner, so that had nothing to
do with that. There was nothing that they could have
done.
Planning director said that there was
numerous violations, so forth and so on, but, in
fact, the record does not completely substantiate
that, and that's what you're being asked to look at,
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25 The primary problem is in 2008 The Bank
applied for the minor modification, which was
granted, and it allowed The Bank to stay open until
2:00 a.m. Thursdays, Fridays, and on holidays.
On February 2nd, 2012, The Bank applied for
another modification solely for the purpose of having
live entertainment. The request to have live
entertainment was granted, but in preparing that, the
staff person inadvertently missed the 2008
modification allowing the restaurant to stay open
How do we know that? There are three ways to
tell that that was a mistake. One, in 2007 The Bank
had a Type 41 liquor license allowing only the sale
of beer and wine. In 2008, that minor modification,
upgraded it to a Type 47.
But if you look at the 2012 modification --
excuse me -- if you look at the 2008 modification,
you will see that the staff cut and pasted -- I'm
getting ahead of myself -- the 2012 modification, the
staff cut and pasted not the 2008 modification
allowing them to stay open until 2:00 a.m. on
weekdays and holidays, but the one from 2007
requiring them to close at 11:00 Fridays, Saturdays,
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25 and weekends.
How did that happen? They simply missed the
2008 modification. How do we know that? They later
testified -- testimony indicates in the second
transcript that when The Bank went to the Planning
Department to ask for a copy of the 2008
modification, they couldn't find it. They didn't
have it.
The Bank went to ABC and ABC had filed a 2008
modification which showed that The Bank was allowed
to stay open until 2:00 a.m. The City did not
have it, and that -- they testified. That testimony
is in the records.
There's a 2021 exchange between
Planning Director Luke Watson and Planner Stuart in
the evidence that's before you, and there is no -- a
number of e-mails. The e-mails are in evidence.
There's no discussion of change in the hours
that appears on the record in that 2012 application,
and there's a problem with the e-mails.
January 19, 2021, Planning Director Watson
e-mails Fisk and includes a copy of the 2012
modification, and Mr. Watson is confused or
uncertain. You can see that in these e-mails about
what happened. And Fisk e-mails to Watson, "I don't
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25 recall taking anything to hearing to modify their
hours," referring to 2012. "Are you recalling
something?"
Watson, expressing surprise, responds, "No.
Just the closing hours are so early."
That's Exhibit A of the hearing evidence,
page 4 -- excuse me -- Exhibit H of the hearing
evidence, page 4.
Jaime Cardenas denied to The Bank that the
City had a copy of the 2008 minor modification. That
information is on page 140, lines 14 to 16, Minor
Modification, 2008, Exhibit I.
Cardenas also told Ms. Lane, the -- one of
the owners, that the restaurant can be open until
2:00 a.m., relying erroneously, I believe, on
language in the 2012 modification. Nonetheless, the
evidence shows that's what she was told.
Cardenas also told Lane, according to the
transcript, Volume II, page 149, lines 7 to 15, that
the City went from one program to another, and when
they changed programs they lost a bunch of documents.
So okay. I don't know when that was, and I
don't work for the City, but based on what Jaime
Cardenas told me -- and this is Ms. Lane
testifying -- she formed the opinion the City did not
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25 have possession of the 2008 minor modification, which is why Mr. Puma went to ABC and got a copy of it.
They did have it, and they presented that to the
City. Mr. Puma e-mailed a copy of that to Mr. Watson
on March 3rd, 2021.
Now, the City claims that the reason they did
not enforce the new hours from the time of 2012 in
that modification until they started enforcing it in
February 2021, 9 years later, was they didn't know
about it, but that's not what the evidence shows.
The evidence shows that City staff and officials were
at The Bank Restaurant themselves having dinner after
10:00 P.M.
This record does not justify the decision
made by the administrative law judge. We did not use
administrative law judges in San Bernardino because
our finding was that they have contracts with the
city, and if they don't come back with a decision
favorable to the city, their contracts don't get
renewed.
We use independent hearing officers, retired
judges, attorneys, who had a two- or three-year
contract that cannot be renewed for another two or
three years, so the motive to just rule in favor of
the city was taken away.
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25 You don't have that here in Temecula, and I
think
that's a problem.
And I
think
it's
a problem
with
administrative law
judges,
and
that's
one reason
why the courts give more credence -- in my opinion
and my experience -- to Hearing Officers -- they have
limited contracts that can't be renewed -- than they
do to the administrative law judges.
Now, the testimony of Sergeant Hephner was
that the homicide occurred January 9, 2022. He was
not working that evening, but he was briefed on it.
Subjects, two males, one pulled a gun. You
heard the City attorney say that that -- that they
were at The Bank. Huh-uh. Not so.
How do we know that? Because, according to
the testimony, subsequently two officers went to
The Bank and asked to see a copy of the tape from the
November 2021 shooting. This is the second -- this
is the first shooting, the one that they -- I'm
skipping here, but there was another shooting in
November of 2021, and Sergeant Hephner testified that
the patrons were at The Bank. They were not.
When the investigating officers went to
The Bank and saw the tape, they saw the bouncer turn
away the two people that were involved in the
shooting because they were already intoxicated having
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er here. That's in the -- that's in the
transcript as well.
That's in Volume
II,
page 116,
line 16 to 25, and
page 117, lines --
you
have this.
All of these things
I'm saying are --
the
citations
are in here.
Sergeant Hephner also testified that at the
candlelight vigil for the victim of the murder, he
encountered a person who was acting suspiciously, and
he searched him and he found a gun on him, and that
was an arrest that he attributed to The Bank.
The problem is the testimony also shows
The Bank was closed the day of the vigil, January
13th, 2022. Transcript Volume II, page 137, line 67.
The Bank wasn't open.
This is all the evidence that Mr. Watson had,
the planning director, when he made the
recommendation to revoke the CUP, and it was based on
this wrong evidence that Mr. Watson made that
decision.
Sergeant Hephner testified that a security
guard, whose name, the sergeant believed, was Venom,
refused to tell the deputies he had witnessed what he
had witnessed the day of the November 2021 shooting,
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25 and he said he was uncooperative and wasn't --
wouldn't provide the information.
Subsequent testimony shows that when he
reported that, The Bank manager, they fired the man
the same day. Sergeant Hephner testified they fired
him for another incident later. Not true. The
evidence shows they fired him the same day. Evidence
further shows that the man's nickname was not Venom.
It was Virus.
Why is this important? Because
Sergeant Hephner testified that in his experience as
a police officer, understandably, if someone had a
moniker or a nickname, they were affiliated with a
gang, and he made the assumption that this guy that
he thought his name was Venom thought that was the
case.
Later testimony showed the name wasn't Venom,
it was Virus, and he was an artist and somehow that's
how he got the name.
Sergeant Hephner testified that there were
other security guards at the bank that had nicknames,
and that indicated to him they were -- maybe had gang
affiliation.
Subsequent testimony showed that the only
other moniker or nickname by a security guard at
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25 The Bank was Eagle, and that man was a
Native American and the nickname Eagle was given to
him by his father.
The list of the incidents involving DUIs
shows -- connected to The Bank shows a stolen vehicle
on July 3rd, 2021 that supposedly came from the
parking lot behind The Bank, but The Bank doesn't own
that parking lot. It's open to the public.
A person ran into the restaurant, a lady -- a
young lady cried her car had been stolen. The
restaurant called the police. The police came, but
The Bank got stuck with that as one of the crimes
occurring at The Bank.
A suspicious -circumstance call related to
The Bank on August 1, '21, The Bank staffer
testified -- it's in the record -- that was her
birthday and she remembered it, and they were open
that day but nothing happened.
By the way, you'll notice a lot of those
incidents say, "no report." I -- I think more than
that, about half of them say, "no report."
When it says, "no report," it's because when
the officers got there, there was nothing to report
on. There was no evidence of anything having --
having occurred.
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25 On another occasion an older homeless man was
outside The Bank yelling and swearing. He was known
to the police. Bank staff called the police, they
responded, and that was charged to The Bank as a
problem there at the restaurant, even though the man
had never gone into The Bank.
As to the list of The Bank's calls for
service, which are in the transcript, the other ones
are in there, too, and you need to look at those.
The Bank was listed in this one period as
having had 40 calls for service. That's in Exhibit
L -- excuse me. Exhibit L is the Stampede, which had
63 calls for service, 23 more than The Bank.
Exhibit M, Pub, 75 calls for service. Again,
The Bank, 40. Exhibit N, Adelaide, 48 calls for
service. Again, The Bank, 40. Exhibit 0, Baily's,
had 27 calls for civil service, and Blackbird had 29
calls for service.
Calls for service are not unusual in an area
such as Old Town, Temecula, because it's an active
area, and that's going to happen. And the practice
on calls for service is if it's in or near The Bank,
it's attributed to The Bank.
Imagine you've got a problem neighbor next
door. They're fighting and yelling all the time,
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25 playing loud music. You call the police. The report
comes back at some point in time that your house has
had so many calls for service on it because you're
the one that called the police, and that's what
happened.
In many of these cases, it was The Bank
employees who called the police, and yet Mr. Watson
based his decision to revoke the CUP on that type of
information.
Mr. Watson testified that we have a well-worn
philosophy for code enforcement. We're not here to
take a heavy hand. First talk with the owners, look
for voluntary compliance, so forth and so on, but if
that doesn't work, then we go to the penalties.
Tom Cole, the old supervisor of the City of
Temecula, also testified the ultimate purpose of any
violation is compliance.
Despite those explanations, Mr. Watson, when
asked why did the City stop issuing noise violations
on July 12, 2021, Watson responded, "Probably because
they stopped violating code and the conditions of
approval at that point." That's Transcript Volume I,
page 123, lines 20, 25, page 124, lines 1 to 5.
Certainly when Tom Cole, code enforcement
officer, was asked why The Bank wasn't cited for
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25 violations after July 2021, Do you know?
"Yes, I do know. They turned their music
down and took their speakers from being outside."
Then he was asked, "And that was the result
of you speaking with someone there at The Bank?"
"I believe so."
Question, "How long after that conversation
was the problem abated?"
"I believe the following week." And then
later he said it may have taken a couple of weeks.
He was asked, "Do you believe the problem has
been resolved?"
"Yes."
So if the problem was resolved in July of
2021, why was the Hearing Officer giving testimony
that one of the bases for revoking the CUP was the
noise violations? Noise violations had stopped more
than a year before the hearing before the CUP.
If it -- if you look at what Mr. Cole and
Mr. Watson testified to, the goal was to get
compliance. Evidently not. Evidently the goal was
to build a record that even if they corrected it and
got compliance a year ago, we still use it as a basis
to revoke the CUP.
That problem continued on all the way through
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25 the administrative law judge hearing. The problem
with the confusion or the City misplacing the 2008
modification, which allowed them to say open until
2:00, the City at that point believed that they
didn't have -- they believed it was 2007.
That's why they did the 2012, they cut and
pasted the hours from 2007, skipping the change in
2008.
Mr. Watson went on to testify that -- about
that incident in November of 2021 where there was a
shooting.
The Bank -- the PD told me they were at
The Bank. I don't know if they were at The Bank
drinking. Well, the sheriff found out they weren't
at The Bank drinking, because the video showed them
being turned away by the bouncer.
Watson was then asked, "Do you know of
anything the Bank could have done that they didn't do
that would have prevented the shooting?" This one
talked about the murder.
He said, "Closed on time." Well, they did
close on time. They closed at 10:00. The patrons
continued drinking, as the 2012 CUP minor
modification allowed, and the shooting occurred at
10:40.
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25 Mr. Watson didn't know that, and he was asked
after he said that they -- you know, they'd closed on
time, the problem wouldn't of happened, how it had
any impact.
His answer, "Maybe they all wouldn't have
been there."
Question, "You don't know that."
Answer, "Well, no. You just asked me if I
thought there was anything they could do."
"Okay. Other than that, is there anything
else they could have done?"
Answer, "No," Mr. Watson.
Yet, when he made the recommendation that
went to the ALJ, he based it on The Bank not closing
on time. They did. They closed at 10:00, but the
patrons, under the 2012 modification, could continue
drinking until 11:00.
The question to Mr. Watson, "You said earlier
there were a number of crimes that happened at or
near The Bank that you associated with The Bank; is
that correct?"
Answer, "Yes."
"How close does something have to be at
The Bank for you to believe that it's close enough to
be their fault?"
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25 Answer, "That is a question for the police
department. I'm not on site. I go off what they
tell me."
He actually goes off what he understands they
tell him. Wait a minute, Planning Commissioners.
Mr. Watson is the one recommending the CUP be
revoked. Doesn't he doesn't have an obligation to
verify the fact on which he bases his recommendation?
Question to Mr. Watson, "What do you believe
'associated' means?"
Watson's answer, "They were patrons. They
were employees. They were somehow associated on
going there and doing business there."
And yet the evidence shows that that was
mistaken on the case of November 2021 shooting, which
was one of the major things that Mr. Watson based his
recommendation on.
Mr. Watson was asked, "Why do you believe
revocation will solve the problem with The Bank?"
His answer, "Well the specific actors that
are involved that are operating the business in this
manner, removing the liquor from the environment is
certainly going to help. I don't know if it will
solve everything, but that is what we have at our
disposal to enforce and that's what we're using."
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25 Wham bam.
Question, "You indicated code enforcement
reaches out to owners to act collaboratively. Did
you reach out to this owner, a phone call, or
something that isn't an enforcement letter?"
Mr. Watson's answer, "No, we didn't."
City did not follow its well -established
procedures. That's not my client's testimony, that's
Mr. Watson testifying.
First he says we reach out to them and try to
work it though, and then we do a gradual progression
of things. He didn't do it.
In any event, as Planning Commissioners,
there's reason you're here. State requires
city -staffed planning commissions. You're a check
and balance on the city staff. It is not your job
just, as you know, to rubber-stamp what the city
staff does or rubber-stamp what an administrative
judge does.
It's your job to decide whether or not the
information presented to the administrative law judge
is sufficient in its totality to support
revocating[sic] a permit. We respectfully submit
it's not.
What we're asking you to do is be that check
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25 and balance that you're intended to be and cut off
the damages to the City.
This case is going to go to Superior Court.
Superior Court is going to look at these records.
They're going to see what you just heard, what it was
based on. They're going to hear the disputes.
And by the way, the City attorney said our
clients admitted the vio- -- they never admitted
them. They paid the violations. They said that,
because they also testified -- it's in the record --
that they believed the City would eventually realize
once they gave them a 2008 permit -- so the City had
their own records which they got from ABC -- the City
would come around and say, Hey, yeah, we made a
mistake. We cut and pasted. We took it from 2007
instead of 2008.
Every day that The Bank is getting this
stuff, damages against the City are accruing. It
needs to be cut off.
I would never have let this case go to a
revocation as a city attorney of San Bernardino. I
didn't want to be sued as a city attorney I don't
want to lose. I see this as a losing case for the
City.
This is not something that needs -- that
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25 needs to be taken any further. The buck can stop
with you. It doesn't have to, but it can, and I
encourage you to do your job as good citizens of the
City of Temecula. As responsible Planning
Commissioners, stop this.
Look at the -- look at those transcripts and
you will see that the testimony was mistaken, and
Mr. Watson in effect, backed off.
Thank you for your time. And I'm reserving
my time, by the way, the remainder of it. This says
I've gone 19 minutes and 28 seconds, and I'm also
renewing my motions for the admission of that video
and for a continuance if we're not allowed to so that
the problem -- the criminal case can be resolved and
the Commission can hear the video and see that there
was no argument leading up to that murder.
It happened very quickly, no way that
The Bank was put on notice that there was some
dispute going on, and that's in the testimony, too,
but you haven't seen the video yet. And there's good
reasons why you haven't seen it. Thank you.
COMMISSIONER TURLEY-TREJO: Thank you for
your presentation, Mr. Penman.
Do we have any questions for Mr. Penman at
this time?
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25 COMMISSIONER SOLIS: I have a question.
COMMISSIONER TURLEY-TREJO: Okay.
Mr. -- Commissioner Solis?
COMMISSIONER SOLIS: I have a question, just
very simple.
What is the active CUP right now that your
client has right now active on the property?
MR. PENMAN: According to the City, it's the
2012 CUP.
COMMISSIONER SOLIS: Okay.
MR. PENMAN: But we contend that was a
clerical error and that the -- because the 2012
application was just for live entertainment. It
wasn't to change the -- it wasn't to change the
hours. And I don't believe that one was accepted
either, if I'm -- my memory is right, but you check
that. I might be mistaken.
COMMISSIONER SOLIS: So your client did apply
for a modification to the existing Conditional Use
Permit and that's how the PA12 came up?
MR. PENMAN: Yes, and applied for it solely
to allow live entertainment, not to change the hours.
COMMISSIONER SOLIS: Okay. And my other
question is what is the resolution or the Conditional
Use Permit that ABC has on file?
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MR. PENMAN: The one ABC --
COMMISSIONER SOLIS: -- what is the one that
you're referring to that said that is incorrect?
MR. PENMAN: The one that the ABC had on
file, which the City now has as of March 3, 2022, is
Conditional Use Permit 2008, which allows them to
stay open until 2:00 p.m. That's what ABC has.
Now, ABC by now may have No. 12 as well --
COMMISSIONER SOLIS: Right.
MR. PENMAN: -- but the City had lost No. 8
or said they didn't have it at our -- and they got it
again after our clients retrieved it from ABC.
And it's in the record, by the way,
Exhibit -- I don't recall the exhibit number, but
2008, 2012, and 2007 are all in the transcript,
administrative record before you.
COMMISSIONER SOLIS: Okay. That's it.
MR. PENMAN: Thank you, Mr. Solis.
COMMISSIONER HAGEL: I have a question.
Excuse me, I have a question for you.
Just a point of clarification, so the 2012
modification was for music; is that -- that correct?
MR. PENMAN: Live entertainment, music, yes.
Yes, sir. Yes, sir.
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25 COMMISSIONER HAGEL: Okay. And your position
was that they did not sign that?
MR. PENMAN: Is -- on the 2012?
COMMISSIONER HAGEL: Right.
MR. PENMAN: My recollection is they did not,
but I don't want to represent that to you and make a
mistake. I don't have it right in front of me. You
can check it and see.
My recollection is they did not sign that and
they did not sign the 2008, as Mr. Ruiz pointed out.
COMMISSIONER HAGEL: Okay. Your client did
start providing music after that, though; is that --
MR. PENMAN: Correct.
COMMISSIONER HAGEL: Okay. All right.
That's it. Thank you.
MR. PENMAN: Thank you, sir.
COMMISSIONER TURLEY-TREJO: Commissioner
Watts?
Mr. Penman, you're not done.
MR. PENMAN: I'm sorry. My apologies.
COMMISSIONER WATTS: On the 2012 minor
modification -- and it was returned to your client,
and you're stating that it wasn't signed by the City;
is that correct?
MR. PENMAN: No. It was signed by the City.
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25 It was not signed by my client, to the best of my
recollection. That's --
COMMISSIONER WATTS: Why not?
MR. PENMAN: -- that's -- pardon?
COMMISSIONER WATTS: Why not?
MR. PENMAN: I don't know the reason it
wasn't signed. I speculate because they didn't agree
with it, that they didn't accept the conditions.
COMMISSIONER WATTS: And those conditions
included the change of hours for operation; is that
correct?
MR. PENMAN: That's correct.
COMMISSIONER WATTS: And did your client
recognize -- you didn't sign it because you didn't
agree with it, why did -- did he bring that to the
attention of the City?
MR. PENMAN: Yes, he did. And, in fact --
well, he brought it to the attention of the City when
the City started to enforce the -- nine years later
when the City started to enforce the 10:00 p.m.
closing.
He testified -- Mr. Puma, who is actually not
my client, but he was the guy involved at the time,
so it's hard for -- that why I say I speculate,
because I don't know why he didn't sign it.
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25 But he testified to the City that he just
looked at the part that said it was approved for the
purpose he had requested, which was live
entertainment, and he put it in an envelope and put
it on the counter, and that's the last he saw of it,
and I believe his testimony -- I believe his
testimony -- it's in the transcript -- was that he
did not see that the hours had changed at that time,
and wasn't until 2009.
But the fact that he didn't sign it, I
think -- you can say it's a technicality, but
technicalities can matter, too, sometimes, and
according to the Temecula Municipal Code, my reading,
the applicant is supposed to sign the acceptance to
show they accept it, and he didn't accept it.
So I don't think the burden was on him to go
to the City. I think the City's burden was to go,
Hey, why didn't he sign this. City should have
contacted Mr. Puma and said, You haven't signed this.
That means you haven't accepted the conditions.
The burden was not -- the City attorney put
it on The Bank. Why didn't they apply? Why did the
City just walk away and allow that unsigned document
not be followed up on?
COMMISSIONER WATTS: It's fine. So you're
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25 confirming then that the new information was
contained in the 2012 minor modification?
It was returned to Mr. Puma; correct?
MR. PENMAN: Yes. I confirm that, but he did
not accept that -- he did not sign his acceptance.
COMMISSIONER WATTS: And he didn't do any
kind of formal protest or objection or anything of
that nature?
MR. PENMAN: Not to my knowledge.
COMMISSIONER WATTS: Okay.
MR. PENMAN: Again, he's not my client.
COMMISSIONER WATTS: Okay. Thank you.
MR. PENMAN: Thank you, sir.
COMMISSIONER TURLEY-TREJO: Mr. Penman,
you're not done yet.
COMMISSIONER RUIZ: Just a follow-up there --
MR. PENMAN: Can I ask a question?
My 45 minutes have now run.
Do the questions count against those?
COMMISSIONER TURLEY-TREJO: No.
MR. PENMAN: Okay. Thank you. I'm relieved.
I --
COMMISSIONER TURLEY-TREJO: It doesn't count
against it. We just have some questions for you.
MR. PENMAN: Ask all the questions you want.
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25 COMMISSIONER RUIZ: Thank you. And I just
want to clarify. So on the 2012 modification to CUP,
you've referenced a couple times live entertainment.
That was for a single instrument or single vocalist
up until 10:00 p.m.
That was what that modification was
requesting; correct?
MR. PENMAN: Respectfully, I don't recall
specifically, but I -- I don't recall to a certainty.
My recollection is that it was for live music in the
manner you suggested, one person was going to be
presenting live music.
That was the reason behind it; however, you
would need to look at the conditions to see if the
conditions limited them to only one person, but I
don't recall reading that.
That was what motivated him to do it. That
may have been what he put on the application, but
it's the terms, the conditions of approval that you
would have to look at to see if he -- if The Bank was
limited to just one performer, and I don't recall
that, respectfully.
COMMISSIONER RUIZ: Okay. I believe that's
what it did state in there, and then it also did
state 10:00 p.m. I was just trying to confirm that
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entertainment today has a different meaning also, so
just I wanted to make sure we were talking about the
same description.
MR. PENMAN: I -- I think we are.
COMMISSIONER RUIZ: Okay. Thank you.
MS. FOX: Madam Chair?
COMMISSIONER TURLEY-TREJO: Yes?
MS. FOX: A rule of procedure here. We had
agreed for the procedure that we will be running
today that The Bank had 45 minutes for the
presentation of their case, so there's no ability to
reserve time.
So I think there was about -- we'll have to
check with the Planning Secretary, but I believe
there was about 18 or 19 minutes left.
So if Counsel has anything further he wants
to add, the time to do so is now.
MR. PENMAN: I'm confused because the City
attorney reserved time for rebuttal, and I was trying
to reserve my time to respond to what she responds
to.
MS. FOX: Thank you so much, Counsel.
So the agreed procedure, the City has the
burden. The City goes first. They have 45 minutes
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25 allocated of which they can allocate any portion of
that for their rebuttal. That is the only party that
gets rebuttal.
Zip Third and Puma Corp each get 45 minutes.
MR. PENMAN: Okay. So I won't be allowed to
come back, then?
MS. FOX: You will not be allowed to reserve
time. That's correct.
MR. PENMAN: Okay. Very good. Then I do
have just a couple more things to say.
MS. FOX: Let us set the clock, if we could,
please, and hopefully somebody kept track.
They reset your 45 minutes.
MR. EDWARDS: Nineteen minutes and
twenty-eight seconds.
MS. FOX: Thank you so much.
COMMISSIONER TURLEY-TREJO: Thank you for
that clarification, Ms. Fox.
Hold on one --
MR. PENMAN: The City --
COMMISSIONER TURLEY-TREJO: Hold on one
second. We're making sure that we have the timer
working up here.
MS. JACOBO: You have 19 minutes and
45 seconds.
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25 COMMISSIONER TURLEY-TREJO: So Commissioners
will go ahead and let him finish.
COMMISSIONER SOLIS: I have one more --
COMMISSIONER TURLEY-TREJO: Let's go ahead
and let him continue, and then if we have any more
questions we can ask him when his time is finished.
Thank you.
COMMISSIONER SOLIS: Got it.
MR. PENMAN: Thank you.
Cities today have a huge problem. They don't
have enough money to hire the number of police
officers they need to police their cities. It's not
the fault of the city.
What is problematic is when problems develop
that are in the proper venue of law enforcement and
there are not enough officers on the job to handle
them, then the city needs to do something.
They're getting complaints. There was a
murder there. There was a shooting down the street.
There was a violent incident inside the -- inside the
establishment.
And by the way, one of those incidents was
the officer testified that a guy was badly beaten by
the bouncer. Turned out that the guy was kicked out
of the club, went to Officer -- Deputy Bowman to
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25 complain.
Bowman came back, looked at the video, saw
that he was not beaten by the bouncer. What happened
was -- and this is in the testimony -- the guy was
using a camera to go under girls' skirts, and he
was -- the bouncer kicked him out.
And he goes to the deputy, and the deputy's
name, Bowman, and he comes in and checks and he looks
at the video and he says, Okay, you didn't do
anything wrong. Those weren't his exact words, but
roughly that's what he says, and that was it, but the
testimony was that that had happened.
You know, this entire case is built on --
COMMISSIONER TURLEY-TREJO: Sorry. Excuse
me.
MR. PENMAN: Ma'am?
COMMISSIONER TURLEY-TREJO: So I don't have
the time going down on mine here, so I just want to
know --
MS. JACOBO: I thought he was responding to a
question.
COMMISSIONER TURLEY-TREJO: No.
MS. JACOBO: Okay.
COMMISSIONER TURLEY-TREJO: He's going on
with his time.
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25 MS. JACOBO: Okay.
COMMISSIONER TURLEY-TREJO: All right. Thank
you.
MR. PENMAN: Okay. I -- my thing shows I
have 19 minutes, 37 seconds, approximately. Okay.
Thank you.
Cities have this problem. The problem is we
don't have enough law enforcement, and when the
public starts complaining, cities need to do
something to show the public they're responding.
Again, I did this for 26 years. I know it
well. What do you do? You shift the blame. You
blame the business. We're doing something. We're
going to close that business. We're going to take
away their CUP.
But wait a minute. They've got property
rights, too. The testimony is there. The city
planning director admitted there was nothing else
they could have done, but yet they're going to pull
their permit, and one of the bases is those -- those
two shootings, I suspect one of the main bases.
How are you responsible as a third -- when
the third party comes on your property, even if you
invite them on. Let's say you have a -- you're
having a party at your house and inviting guests, and
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25 Heaven forbid your guest -- someone brings -- you
invite somebody that brings somebody and that person
pulls out a gun and shoots somebody.
Should that be your fault? It's your house.
And it shouldn't be their fault either.
They had security. The testimony was that
the security wasn't wearing the right uniforms, that
they had criminal backgrounds, but the other
testimony from The Bank was that we didn't know of
any criminal backgrounds and that's not what the
police told us.
And they are wearing the proper
identifications, and they've been wearing them since
the day the City of Temecula required them to start
wearing clearly identifiable uniforms or jackets
saying "security," which was July 31st, 2022. Prior
to that they weren't required to do it.
But the planning director believed and the
administrative law judge believed that there was a
murder there that could have been prevented. There
was a shooting down the street. The officer
testified it was a -- it was less than a block. The
business testified it was more than a block.
It was attributed there, but the officer
thought that the people involved in the shooting,
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25 November 2021, had been drinking at The Bank, and
they weren't. The video showed them being turned
away by the bouncer.
So this is a big mess. It's going to get
unravelled at some point in time. I don't know if it
will be at the Superior Court or the Appellate Court
or the California Supreme Court.
It doesn't have to go that far because you
guys can look at those transcripts yourself. You
know, I understand an administrative law judge might
believe what the officer said, but the officer may or
may not have known about the follow-up visit, the one
that the officer testified where the video showed
they were turned away.
night of the murder, but they did not take the video
of the guy being turned away because the
investigating officers were satisfied, Oh, yeah, they
weren't here. So for their purposes, they didn't
need the video.
They would have needed it. They would have
taken it had they been there, but they didn't take
it. And that's in the -- that's in the evidence,
too.
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25 So I spend a lot of my time advising city
officials we can't violate someone else's rights just
to make the city look like we're doing something,
because elected officials, you know, they answer to
those voters, as they should, and they don't want to
say we can't do anything.
Can they do anything? Yeah, they can cut the
budget somewhere else and hire more cops, but that's
a tough call, and I'd be the first to admit that.
But that's the problem.
It isn't just in Temecula. It isn't just in
San Bernardino. Isn't just California. It's
everywhere across the nation, there's -- violent
things are happening, and obviously they need to be
rectified.
But the way to rectify them is not to take
away the Conditional Use Permit of a good restaurant
that runs a good business where the owners do what
the police says.
The testimony in the record shows that
Captain Hall of the Sheriff's Department called
Ms. Lane and said, Hey, the City wants you guys to
close down earlier than 2:00 because we're having all
of these problems. None of the other restaurants
will do it. Will you do it? Yeah, we'll do it, and
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25 they stopped closing at 2:00 and they closed at
12:00. And Captain Hall told her -- it's in the
transcripts -- nobody else was doing that. They did
that several times.
The parking lot behind The Bank is owned by
the same property owner that owns The Bank, but he's
done everything -- he's put, like, 19 cameras in
there to watch that parking lot.
The Bank paid for their security to go and
patrol that parking lot because there were incidents
happening there, even though The Bank had no control
over that parking lot. They did that, and the other
neighbors appreciated it.
The other tenants of the property owner
thanked Mr. Solomon for what The Bank was doing.
Mr. Solomon testified that he had no
complaints amongst his other tenants who were right
there adjacent to The Bank about The Bank, and yet
the testimony of the city officials and Sergeant
Hephner is that this occurred in -- I think the --
Mr. Watson -- this occurred immediately adjacent to
The Bank. It did not. It occurred down the street.
Mr. Watson made his decision based on erroneous
information.
And I know what happens with planning
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25 directors, and so do you. The -- you know, the
mayor, the council member calls the city manager and
says, Hey, we're having all this stuff and The Bank
is getting the blame and you've got to do something
about it.
Watson, in his testimony, expressed surprise
that the -- excuse me -- in the e-mails, Watson
expressed surprise that The Bank was being told to
close that early when the 2012 permit was issued.
You can see it. It's right there. It's in
his words back and forth between he and the other
planner.
This thing was a mistake. It was an
accident, and our clients testified to that. Our
clients testified it was an honest mistake. They
don't think the City purposely lost or disregarded
the 2008 permit. Somehow it got lost, and according
to Jaime at the counter, it got lost because the City
changed its programs, and that happened.
I can tell you, 26 years in San Bernardino,
we changed programs three or four times, and every
time we change, something went wrong. I suspect that
happens with you when you upgrade your computers to
some new system, you may have some problems.
Maybe you're more technologically
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25 sophisticated with computers than I am, but I know -- we had a guy come in the other day and upgraded my
wife's computer and she said she can't find anything
she saved. She doesn't know what to do. Had to have
the guy come back and train her how to do it.
It happens. It's an accident. City is not
bad. Nobody is out there trying to hurt anybody.
The other problem is one planner testified
that when he changed the 2012 application, he was
told by the planning director, Mr. Richardson, at the
time to do it.
That doesn't make any sense because the
testimony of Mr. Puma shows Mr. Richardson is the one
that told him he needed to apply for a change in his
permit in order -- so he had to buy a license.
Why in 2012 did Mr. Richardson, who
retired -- I think the testimony is -- in 2013,
suddenly direct this planning staffer to change the
hours and roll them back?
There weren't any problems going on of this
no discussion in the 2012 record of change in the
hours.
I suggest what happened is the person who
testified to that is the person who cut and pasted
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25 the 2007 hours onto the 2012 permit. He's the one
Maybe he missed it because it wasn't there,
but he had come up with an explanation of how did
this happen, and some of his testimony was you need
to ask Mr. Richardson, but we don't know where he is.
He retired and he's gone.
Since March of 2021 The Bank has been
complaining to the City about the 2008 document being
lost and not being there. There's a lot of e-mails
Why did this planner wait until the hearing
before the administrative law judge to announce that
he had been told by his boss to roll the hours back?
I suggest because I don't think that's what
happened, because otherwise he would come forward and
say, Oh, yeah. Mr. Richardson told me back in 2012
to roll those hours back.
And why would Mr. Richardson have done that?
There were no complaints going on. City of Temecula
didn't start enforcing the 2012 closure time at
10:00 o'clock until February or March of 2021.
That's when the problems really started. Maybe a
little before that they started in Old Town overall.
The Bank should not be the one to bear the
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25 burden, the sole bearing of the burden for the
problems Old Town is having. They didn't have even
the majority of calls for service there.
Regardless of how you look at the calls for
service, whether they are founded or unfounded,
whether they are related to The Bank or not, they had
less than most of the other -- the only two other
restaurants that were looked at that had them.
How did they get those calls for service?
Amanda Lane, manager over there, calls Captain Hall
and says, I need the calls for service. They're
saying that we got excessive calls for service.
It was Captain Hall who got those numbers for
her. That's in the -- that's in transcript. He's
the one that came up with it.
The owners of The Bank had a good working
relationship with the city. The city people came to
their restaurant. They had a good working
relationship with the sheriff.
Sergeant Hall calls them, Hey, can you close
at midnight, because the city -- the city is honest
about -- and -- you know, about these problems.
And it wasn't just the City at that point
asking The Bank, it was asking all the restaurants to
close at midnight. The Bank was the only one that
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Now we turn around and say, you know, some
guy walks into your restaurant -- didn't even
really -- wasn't even inside, he was in the patio,
and he has a concealed weapon, and some guy comes in
that he has a long-standing feud with, and he takes
advantage of that opportunity and shoots that guy and
shoots an employee, an ex -employee of The Bank.
That's something else, too. Mr. Watson
testified the guy that was murdered was an employee
of The Bank. He was an ex -employee of The Bank.
He'd been let go from The Bank. He'd -- he just --
he'd just come back that day. He worked as a cook at
another restaurant down the street, the deceased.
When you see that much conflict in a
transcript, and, you know, when the burden of
evidence is either reasonable preponderance or clear
and convincing -- which I believe it would have been
before the ALJ and before you to revoke a CUP, clear
and convincing -- it's not that clear and convincing
when you've got that much dispute and that many
credible witnesses.
No one in those transcripts accused Ms. Lane
of lying. The only really suspicious thing is all of
a sudden this one gentleman, planner, comes forward
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25 and relates a conversation that is not in any record, is not in any e-mail, was never given as a reason why
we rolled back your hours, but all of a sudden
Richardson has been gone since 2013.
It's now September 1, 2022. I'm testifying
before the administrative law judge. Yeah.
Mr. Richardson told me to do that. He told me to
roll back those hours.
I think he's asked, Do you know why? No. I
don't know why. That's what he told me. I did it.
Maybe that's true, maybe it isn't, but clear
and convincing evidence, don't you need something
more than that? Shouldn't an administrative law
judge want something more than that?
The problem for the administrative law judge
and the problem for you is you've got all this stuff
you just heard from the City attorney, all of these
terrible things that are going on there, but when you
start picking them apart and you look at them one at
a time, no, they're -- they're not.
The Bank doesn't have any more
incidents there other than the murder -- that's a big
thing. Don't get me wrong. You know, that horrible
joke we heard in junior high, Other than that, how
was the play, Ms. Lincoln?
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25 I mean, a terrible joke, but nonetheless that
could've happened on your property at a party you had
with a guest of someone you invited brought, and
that's what happened to The Bank, and The Bank should
not have their livelihood cut off.
They've put a lot of money into this
community. The evidence is they paid all the -- all
the -- all the back fines were paid.
When the current owners, Amanda Lane, took
over the running of the restaurant, they paid all of
not pay all of the fines, they paid all of the back
rent.
They paid the fines at that time not as an
admission something was wrong, but because they were
trying to work with the City, and the evidence in the
transcript says they didn't want to make the City
angry. That's why they paid them.
But when the City moved in the aggressive
manner it did, would not meet with them, would not
call them, then at that point they stopped paying the
fines, and they owe those fines.
If this thing gets resolved, then they're
going to pay those fines just to show their goodwill,
but there's a strong legal argument that they don't
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25 have to pay fines for being cited for going beyond
the hours when that requirement was a mistake, just a
simple mistake, and they shouldn't be having their
revocation -- their CUP revocated for excessive noise
when they stopped doing that, admitted by both
Mr. Watson and the code enforcement officer, when
they stopped doing that in July of 2021 and the
recommendation to revoke the CUP didn't come out
until March of 2022.
And yet it's partially based on something
that they came into compliance on, they corrected.
Exactly what Mr. Watson and exactly what the code
enforcement officer said, the purpose of the citation
is to get compliance. They got compliance, and yet
this is still hanging over their head.
I'm not going to use all of my time. I hope
you'll listen carefully to what the City attorney
says in rebuttal, because she does have the burden.
She has the burden because the City wants to
take away the livelihood of certain people. They
want to take away their Conditional Use Permit
despite the fact between 2012 and 2021, they never
cited them or did anything to them.
Fire department inspections, I'm sure, once a
year, nobody said, Hey, they're closing too late,
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25 whatever. They have all this misinformation in
there.
Please remember the points that I made after
Ms. Petrusis finishes her rebuttal. Our clients
never admitted they did anything wrong. They don't
believe they did anything wrong. They think the City
made an honest mistake, and now they're -- they're
paying for it.
And the public can look at it and say, Well,
City should do something. The City says, What are we
going to do? We can't afford to double the number of
police officers. That's another thing. After the
murder, they not only hired more security, they
doubled the number of security they have there.
As Mr. Watson testified, there's nothing else
they could have done to have prevented that murder.
Nothing, other than close on time, and Mr. Watson was
mistaken because they did close at 10:00, and under
the 2012 CUP they're entitled as a patron to stay
there another hour and consume alcohol, and the
patrons did.
The murder occurred at 10:40. 11:00 o'clock
was the cutoff time for the consumption of alcohol
there, if they were consuming alcohol. They probably
were. I assume that were at that hour.
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25 You have been very kind to listen to me. I
appreciate it. I apologize for talking so long and
for a couple mistakes I've made.
I've been tested for COVID. I don't have it.
I do have a slight upper respiratory infection, so
I've been wearing a mask to protect everybody else,
and my thoughts were probably not as clear as they
are every single day.
I have 19 seconds left. Thank you. I will
shut up, unless you have any questions.
COMMISSIONER TURLEY-TREJO: Thank you,
Mr. Penman. I'm going to have our Counsel clarify a
couple things, so you can go ahead and have a seat,
and then if we have any other questions for you we
will have you come up.
MR. PENMAN: Thank you, Commissioner.
COMMISSIONER TURLEY-TREJO: Go ahead.
MS. FOX: Thank you, Madam Chair.
There were a couple points that were made
for -- at issue here. One is the failure for there
to be produced in transcript a copy of the executed
acknowledgement of the conditions of approval for the
2008 and the 2012 modification to the CUP.
There was a body of caselaw that says when
you accept the benefits of the conditions, you
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25 also -- of the permit, you also accept the burdens.
And, of course, there was some questioning by
one of the Commissioners about, in fact, they did
accept the minor modification. They did have some
live entertainment there, and so there is an
established caselaw that makes that clear that the
failure to sign those is of no moment.
As well, there was a question raised about
the use by the -- in this instance, of the
administrative law judge. You can see from 17.03.085
that that specifically provides that the city clerk
shall refer the matter to the California Office of
Administrative Hearings for the assignment of an
administrative law judge to serve as an independent
Hearing Officer. That is Section A(1)(b) of
17.03085.
The administrative law judge said on the
record she had no affiliation with the City of
Temecula. There's been absolutely nothing put in the
record that there's any motivation or any financial
interest or anything other than an unbiased
decision -maker from the administrative law judge.
In fact, the issue is, again, from a
published decision, Haas v. County of San Bernardino,
that took issue with the manner in which the County
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25 of San Bernardino had retained its Hearing Officers, and in that particular case there was evidence of an
improper motivation of getting more work from the
city, none of which is apparent here, and quite the
opposite.
The City has gone very thoughtfully in its
approach and its Municipal Code to make sure that it
has an independent Hearing Officer.
COMMISSIONER TURLEY-TREJO: Thank you so much
for that clarification. I wanted to have that
clarification before we asked any other questions of
Mr. Penman.
Do you have questions for him?
COMMISSIONER SOLIS: I don't have anything.
COMMISSIONER TURLEY-TREJO: Okay. Mr. Hagel?
COMMISSIONER HAGEL: No.
COMMISSIONER TURLEY-TREJO: Okay. Any other
questions on this side?
Okay. Thank --
COMMISSIONER WATTS: I have one.
COMMISSIONER TURLEY-TREJO: Okay. Go ahead,
Commissioner Watts.
COMMISSIONER WATTS: Mr. Penman, you
mentioned Mr. Richardson.
COMMISSIONER TURLEY-TREJO: Let's have
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25 Mr. Penman come on up again. Thank you.
COMMISSIONER WATTS: You actually referenced
Mr. Richardson quite a bit there --
MR. PENMAN: Yes, sir.
COMMISSIONER WATTS: -- in that last part.
Did you attempt to locate him?
MR. PENMAN: Yes. We hired a private
investigator. The private investigator was not able
to -- to locate him.
We found a video online of a presentation
that he made to a group. We tried to follow up on
that. We were not successful. We are now -- we are
still trying to locate him. We're trying -- because
we're -- we'll probably be going to court, and we're
doing that through some other -- some other avenues.
So yes. Yes, sir. We --
COMMISSIONER WATTS: Okay. You tried,
but you were unsuccessful --
MR. PENMAN: We were not successful. Tried
hard. Spent quite a bit of money trying -- before I
was on the case, my client spent quite a bit of money
hiring a private investigator.
COMMISSIONER WATTS: Okay. Very good. Thank
you.
MR. PENMAN: Can I ask Ms. Fox just to
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25 clarify that the Hodge[sic] Case was the County of
San Bernardino and not the City of San Bernardino?
MS. FOX: Madam Chair, everything should go
through you.
COMMISSIONER TURLEY-TREJO: Yeah.
MR. PENMAN: Oh. I apologize. Through the
Chair, I -- and I know that. I'm sorry. I
apologize.
Through the Chair, I don't want any of the
Planning Commissioners to believe that the Hodge
Case, which I'm well -familiar with, was with the City
of San Bernardino. It was with the County of San
Bernardino, as Ms. Fox clearly said, and I was just
asking her to reaffirm that, that it was County of
San Bernardino that was doing something wrong and not
the --
COMMISSIONER TURLEY-TREJO: Okay. I don't
think it's really relevant to what we're discussing
right now, but -- but thank you for your
presentation, and I don't think we have any other
questions.
Okay. Thank you very much.
MR. PENMAN: Thank you, all, again.
COMMISSIONER TURLEY-TREJO: So I did want to
ask my colleagues if you want to take a little five,
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Okay. So we're going to take a five-minute
break right now. Thank you.
(A recess was taken.)
COMMISSIONER TURLEY-TREJO: All right. I
think we have everybody back that we need.
All right. We will go ahead and call up the
attorney for Zip Third Investments for your
presentation.
MR. EDWARDS: Thank you, Madam Chair. I hope
it was okay I made a little modification here for my
height and my eyesight. This is a cardboard box and
it's not scratching --
COMMISSIONER TURLEY-TREJO: Hey.
MR. EDWARDS: -- the table.
COMMISSIONER TURLEY-TREJO: Hey. I like it.
That's awesome. Tell us your name, please.
MR. EDWARDS: My name is Rick Edwards and I
represent Zip Third, LLC, and its manager,
Mr. Solomon, is in attendance today.
COMMISSIONER TURLEY-TREJO: Okay. Great.
And will you be the only attorney speaking for --
MR. EDWARDS: I'll be the only attorney
speaking.
COMMISSIONER TURLEY-TREJO: Okay. Thank you
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MR. EDWARDS: Thank you.
COMMISSIONER TURLEY-TREJO: And you know you
have 45 minutes?
MR. EDWARDS: I couldn't miss it.
COMMISSIONER TURLEY-TREJO: All right.
Great.
PRESENTATION SPEAKER
MR. EDWARDS: Thank you.
So believe it or not, without ever seeing any
of you before, I thought of you, and I thought of you
when I was watching the Super Bowl, and I'll tell you
why.
There was a call at the end of the game, a
holding call. It was criticized a lot because it
wasn't a major violation, but it was a violation, and
as a result many people feel the game was changed.
You may remember it was a holding call on a defensive
halfback.
Now, even the guy for Fox Sports who is
supposedly their officiating expert said, Oh, I don't
think he should have called it, but it was a
violation of the rules. And what I'm -- why I
thought of you is, we have a violation here by the
City of its own rules in revoking the Conditional Use
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25 Permit as to my client.
I do not represent The Bank, but as to my
client, the property owner -- and we heard, by the
way, the CUP holder -- we heard from the City's
lawyer that the CUP holder is The Bank Restaurant.
That's true in part, but the administrative
law judge specifically said -- and I will show when
we get to the slides -- there are two permit holders,
one of which is Zip Third, my client.
I don't criticize the procedure at all used
regarding The Bank. It was very lenient. But as to
my client, the procedure was improper, and I will go
through that with you.
Now, why do I mention the Super Bowl? Those
referees take an oath that they will enforce the
rules.
I tried to get that oath from the NFL. I got
into voicemail jail, to the public relations
department, and maybe they figured I'm going to, you
know, jump an official or something, so they never
got back to me.
But I do know they take an oath, and they
take an oath to enforce the rules. And that referee
enforced the rule, and the player said, I held the
guy. It was a hold. I just hoped I could get away
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25 with it.
So here what I'm going to ask you to do is
enforce the City's rules, the City of Temecula's own
code. That's what I want to talk about. And that
code says -- and you've all taken an oath, I believe,
to support the code.
I tried to get the Planning Commission oath.
I couldn't get it. I got the City Council oath, and
the clerk tells me the same oath is given in the
Planning Commission, so I hope -- I hope I'm correct
on that.
But anyway, you take an oath to support the
Constitution, and we have a Federal and State
Constitution. They both provide for due process.
The City of Temecula wrote a code that
specified the process for this type of a proceeding,
a revocation.
Mr. Watson testified the CUP is a valuable
property right, and my client has it. And the City
at Title 1, Section 1.21.050, basically makes it
idiot -proof that anybody gets notice of a violation
if they're a permit holder, and here's how they get
it. We'll go through this word by word.
By the way, even if it counts against my
time, if anybody has a question when I'm talking -- I
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25 personally don't like listening to speeches. I would rather be here than where you are. I'd be worn out
by this point, frankly.
But if anybody has a question, even if it
counts against my time, if you don't want to hold it,
just jump in. I welcome questions, because I'm not
here to mislead you. I'm going to give you facts. I
represent that. I'm going to give you citations. I
represent that I will do that. I'm going to give you
excerpts of the City Code.
I'm not down here talking from anything but
the bottom of my feet. So with that, let's -- let's
proceed.
COMMISSIONER TURLEY-TREJO: We'll go ahead
and ask questions when you're done, though.
MR. EDWARDS: Okay. Fair.
COMMISSIONER TURLEY-TREJO: Just to be fair
with my Commissioners. Thank you.
MR. EDWARDS: Okay. I'm not trying to
rewrite the rules.
COMMISSIONER TURLEY-TREJO: No, no, no. Just
wanted to be clear.
MR. EDWARDS: Okay. Anyway, this 1.21.05, it
provides first thing you want to try to do is serve
the person personally. Hand it to them and get them
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25 to sign for it.
If you can't do that, then you send them
notice by certified mail. And if you send it by
certified mail and you want to protect against it
coming back unsigned, you also send it by regular
mail. It's very, very business friendly to the
property owner, as Mr. Watson testified the City is,
very business friendly.
So here we have, as you've heard, an
investor, and it came out that Mr. Solomon and his
entities own nine buildings in Temecula. They own
the entire block where The Bank is.
He invested down here after doing hundreds of
projects for the last 40 years in part because it was
business friendly. And he introduced himself to
Mr. Watson. Nobody refuted this. And he became
acquainted with the City's procedures.
So he's up there in LA -- I left -- I left at
6:00 o'clock this morning because I wasn't sure how
long it would take to get here. Only took two hours.
But yesterday if I would have left at 4:00 o'clock,
according to Siri, it would have taken me more than
three hours.
So it's not -- this is a great town. It's
beautiful, but it's not a -- not a dinner destination
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25 if you live in San Monica, as I do.
So you've got a property owner in LA,
assuming the property owner, because of your code, is
going to get notice. And I will show you, there's no
evidence that he ever received anything personally
delivered, and he never received anything by
certified mail. The City doesn't contend that. They
do not contend that.
Basically, here's the temptation, and I
completely understand this temptation. The
temptation, just like in the Super Bowl, is to say to
you, Well, look at what happened here. Let's just
not apply the rules to this. Let's just go overlook
the fact that there was no personal service, not
once, let's overlook the fact there was no certified
mail, not once.
Let's overlook the fact that never, not once,
not a single time in the whole 17 months did anyone
say to Mr. Solomon you did something wrong. You, the
property owner, did something wrong. You are a
responsible person. We are citing you. You have to
do something about this.
Now, I will get later to the precise
testimony, because there was an inaccurate statement
by the City lawyer.
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25 The City lawyer said that in June or July of
2021 the -- Ms. Lane, who runs The Bank, contacted
the property manager for the proper owner and said
there are being a citations -- there are citations
being issued.
That's not what that testimony was, and I
clarified it on cross-examination. And I will show
you that she did say, Well, we're being hassled, but
she's not -- doesn't remember when she told them
The testimony of Mr. Solomon was that when
regular mail -- now, not in compliance with the
code -- regular mail started arriving at his office
in March of 2022, the property manager contacted
Ms. Lane and was assured that she was handling the
citations from the City, that she was operating, as
her lawyer said -- and this is -- I don't think
anybody contests that.
They operated for nine years, the same way
they operated when they started getting these
citations, except they added a musical person, but
those hours had been going on for a long time without
citation.
I'm not defending The Bank. I'm not -- I'm
not saying they shouldn't have appealed, or whatever.
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25 I'm just saying there was never a complaint to
Mr. Solomon.
This is all in his testimony, and I will give
you cites if you'd like. Never a complaint by any
tenant that he has in Temecula. That's lot of
tenants, including that entire block, about The Bank.
No complaint from the police department, no citations
to him, no certified mail.
How is he supposed to know? He's not
clairvoyant.
But to get back to my point about the Super
Bowl, please -- you have the responsibility. You
took an oath to uphold the Constitution. The
Constitution includes due process.
Let me get to your oath, if I can make this
thing work. Mr. Watson was very kind and showed me
how it worked, but it's not working.
Thank you, sir. Okay.
So there is the -- there is the oath, and I'm
sure you're familiar with it, but it's to support and
defend the Constitution of the United States, well
and faithfully discharge the duties, and underneath
that I have a name of a case -- I don't know why this
isn't working -- okay -- "Today's Fresh Start."
That basically says that both the State and
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25 Federal Constitution require due process before
depriving property opener of a property interest.
And I've got Mr. Watson's testimony that a --
quote, "a CUP conveys a vested right to the property
owner," closed quote.
Now, I would like to -- if you'll look at --
I just handed out packets to all of you. I'm sure
you have it on your computer also.
But look at one of the first things that
happened at the administrative hearing. The
administrative law judge says, "Am I hearing from you
that there are two --" two "-- permit holders here,
both the property owner and the restaurant operator?"
And the City lawyer, Ms. Petrusis, said,
"Yes."
Then the court, the administrative law judge,
says, "Okay. I have the parties' position on that
very critical issue," and then she said that she
agreed with the parties' position.
Now, why is this important? It's important
for the reason I alluded to earlier. The property
owner has a property interest in the Conditional Use
Permit. They are a holder of the permit.
Why are they not given any citations? Why
did that happen?
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25 I will tell you my theory why it happened. I
don't think -- Mr. Watson, by the way, is a terrific
trial witness. I've been evaluating trial witnesses
for 50 years. He is a darn good witness. He very
well prepared.
He testified -- and nobody will dispute this,
and I will give you the cite later -- he testified
there hadn't been a revocation proceeding in ten
years. This is a business -friendly city.
He testified -- and I have no reason to
question the guy. I asked him to help me with this.
I mean, I trust him.
The bottom line is he testified that the
City -- and this was read by The Bank's lawyer. The
City wants to collaborate with property owners.
He testified, and you will see this in the
slides, that the first thing they do before they send
out warning letters, even, they'd go and talk to the
person, say, Here's the rules, we want you to comply
with the rules.
They give them a couple of weeks to comply
with the rules. If the rules aren't complied with,
what do they do? They don't hit them with
administrative citations. They send them warning
letters.
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25 And he said, We want to work with them. We
don't want a heavy hand. You heard that read. But I
will show you when I examined Mr. Watson, he was very
forthright. I give him a straight A. He said, No,
we never talked to the property owner. We never did.
The procedure, he said, the City procedure --
and this is in compliance with the spirit of the
code. It's not a legal requirement. I can't stand
here and tell you they have to do it, but this is
what they say they do, exactly what I just said,
collaborate, talk, urge compliance.
Then they issued these administrative
citations, which went on about five months.
Ms. Petrusis absolutely accurately described that.
Then they elevated to civil penalties, and that was
all against The Bank, never the property owner.
Now, as a technical matter -- I don't like
technicalities. This why if I were the referee in
the Super Bowl I probably wouldn't have called it.
It didn't look big enough. I would be a bad referee,
but I didn't take an oath, either. If I took the
oath I would have to enforce the rule.
The point is they could mail -- they could
mail citations to the property owner, but that's not
effective service. Now, you can say, Oh, the
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25 property owner must have known. We -- we say we sent 97 citations to him.
He's the irony. The Bank, which got all of
this collaboration, got meetings with City people.
The Bank got everything perfectly per the code. They
got in -person visits. They got certified mail to
their agent for service of process, and Mr. Watson's
team went one step further. They sent regular mail
to The Bank.
This all came out in Mr. Cole's testimony.
So they got concierge treatment, but the property
owner, who is going to be there after the tenant is
gone, did not. What happened when the property owner
learned what was going on?
Now, this was COVID. Mr. Solomon testified
that he's 76 years old. He was hiding. He was not
going to his office. He did not want to catch COVID.
Thank God we're kind of past it, but those
were the days when a lot of people hid. So whenever
these letters started coming to his office -- and
Ms. Petrusis absolutely accurately stated that he
acknowledged getting 16 of them -- they were in the
office, but here's where she missed the point. They
were not delivered to him.
If I am in an office and I see something
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25 certified mail, I'm going to make sure the boss knows about it. Probably it has legal significance,
financial significance, or it's some kind of a hoax.
One and two are more likely.
His office made a phone call to Ms. Lane.
Now, you can say, Well, the property manager should
have told him, and I don't disagree with you. The
property manager should have told him, but the code
does not require that.
The code, as I said, makes it idiot proof.
Even a negligent property manager is very likely to
say, Hey, I got a certified letter here and it must
be important. They're talking about violations.
They sent it certified. You need to know about this.
This was not brought to his attention.
By the way, his testimony, which went on
quite a while, was never impeached. Nobody said he
was wrong about this fact or that fact. Totally a
straight arrow and very credible, as was Mr. Watson,
but the point is the code is on Mr. Solomon's side,
and the code is what I'm asking you to enforce.
So if you look at -- the next slide that I
have is 1.21.050, and that is -- that is the kind of
code section you want if you are a property owner.
The requirements, first the enforcement official has
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25 to attempt to locate you.
Now, Mr. Solomon is not hard to locate. I'll
tell you the irony. The City says they sent 97
violation letters to Mr. Solomon. They -- they had
sent a revocation letter, and they said to his
Wilshire Boulevard, Los Angeles address.
The City sent a revocation letter, we're
going to revoke the permit, to him May 19, 2022. You
know where they sent that after they say they sent 97
letters to him, that he says he only got 16 of
starting in March?
They sent it to him at The Bank. At
The Bank. Not to his address, which they said they
have been using, but to The Bank Restaurant.
Ms. Petrusis must have figured that out.
They continued the hearing because it didn't have
adequate notice to the property owner.
And on July 1st at 5:00 o'clock, the 4th of
July weekend, she called Mr. Solomon. He's not hard
to reach. She called him and left a voicemail
message. He got the message and called her back at
5:15. He then learned the City planned to revoke the
permit.
Somebody reached -- Ms. Petrusis did the
absolute wise thing. I applaud her. She made up for
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25 what hadn't happened. She called him.
The City could have called him at any time.
You will see that Mr. Cole said, I wonder if the
property owner knows about this, and then sent an
August 20 letter to Mr. Solomon by regular mail, and
that letter says this is to inform you, meaning we're
telling you, that your tenant is violating.
There's no assertion -- no assertion -- that
Mr. Solomon or Zip Third is violating anything.
Nobody attempted to hold him responsible or told him
he was responsible or attempted to fine him, nothing
Now, what happens after he learns? What
happens after he learns July 1? He gets a bankruptcy
lawyer because The Bank is in bankruptcy.
I don't know if any of you have familiar --
have familiarity with bankruptcy, but if a bankruptcy
has been going on for a few -- a couple years, like
The Bank's bankruptcy was going, it's not that easy
to get a judge to dismiss the bankruptcy case. I
think that's a statement I can make to your common
sense.
He went in and got a bankruptcy lawyer down
here who testified to this who went in and got the
bankruptcy dismissed -- that's not child's play --
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25 because of the violations, and that set the stage so he could bring an unlawful detainer action.
That dismissal on an expedited basis, despite
years of planning and so on in the Bankruptcy Court,
was August 23rd. The dismissal order is in the
record. Next step is to bring an unlawful detainer.
That had not happened at the time of the --
of the hearing. It's not in the -- our hearing,
which was August 31st and September 1st, referring to
the revocation hearing, so I can't talk about what
happened afterwards because I'm going to stick to the
record. I would love to, but I won't.
So anyway, I think -- I think I'm kind of
pounding the drum maybe to the point of nauseating
you, but the service was bad. It was not service at
all.
Now, the administrative law judge states, "It
seems to be the question legally will come down to,
can the City hold this permit holder responsible for
violations of the CUP by their tenant?"
Now, let's look at City Code 1.21.020(c).
"'Responsible person' means any person whom an
enforcement official determines is responsible for
causing or maintaining a violation of the code. The
term 'responsible person' includes, but is not
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25 limited to," and it lists all of the people who could be a responsible person, including a property owner.
But the City never said, You, sir, are a
responsible person. Your entity is a responsible
person. We are citing you. Responsible person could
have come into play if the City had said there's a
public nuisance here.
That's Title 8 of your code. That's the only
section of your code that I can find that says a
property owner has as its agent a tenant. In other
words, if the tenant does something bad, you can
attribute it to the property owner, public nuisance.
That's not what happened here. They didn't
proceed on that basis, and according to the rules,
they have to -- they have to accomplish service in
the way I've told you.
Even if you think it's ticky-tack, that's the
City
of
Temecula rules.
That's due process. That's
what
you
were sworn to
uphold.
Now, the -- the -- I argued to the
administrative law judge you've got these -- you've
got these violations by The Bank. I'm assuming --
you know, I'm assuming -- I completely understand the
argument that who in their right mind would give up
these late hours when you make all your money selling
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25 booze, have somebody play music at dinner and lunch.
It's hard to believe that the guy who went in
and applied for the modification in 2012 understood
that, but that's not my fight. I'm not here trying
to defend The Bank.
But the point of the story just is with the
property owner also being a permit holder, I would --
if you look at Section 4 of the CUP, it says that the
City can review and modify this Conditional Use
Permit based on changed circumstances.
Now here, I gather the changed circumstances.
The business got loud. The business operated too
late, and there were supposedly -- I didn't witness
any of this, so I don't know, but there was testimony
as to assaults and crimes in the area and so forth.
So the City fought and offered testimony that
it had grounds to revoke as to the tenant, The Bank,
but they didn't offer grounds to revoke as to the
property owner, who was never cited and who is not
responsible according to the city code.
The property owner's circumstances did not
change. There was no basis to revoke as to the
property owner. He didn't do anything wrong and he
wasn't cited. It was the tenant whom the City
complained of.
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25 Now I mentioned the bankruptcy order, and
that is the bankruptcy order dismissing the
bankruptcy.
Now, I'm not going to belabor this, but
Mr. Watson did talk about, as I alluded earlier,
talking to the owners. And I asked Mr. Watson, after
he talked about talking to the owners -- and by the
way, I completely commend him on this procedure.
He's business friendly, exactly as he says. As I
said, he was a very good witness.
I asked him this question and he answered me
very candidly. "You testified that the code
enforcement situation is the City tries to be
business friendly and that the City does not want to
use a heavy hand as to owners, but instead to work
collaboratively. I think I quoted that pretty
accurately. Based on that, did you ever attempt to
contact Mr. Solomon or anyone at Zip Third by phone,
for example?"
Answer, "No."
Then I asked him, "My question is you
indicated that code enforcement reaches out to owners
to act collaboratively. Did you reach out to this
owner to act collaboratively, meaning a phone call or
something that isn't an enforcement letter? That is
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25 my definition for purposes of this question."
His answer, "No, we didn't."
And I want to be clear. "We didn't." I'm
not suggesting for one second that Mr. Watson
personally did anything wrong. He seems like a very
efficient guy, very good public server. My own
theory is, hadn't done a revocation before, weren't
that familiar with the proceeding, they did the best
they could and went absolutely by the book as to the
tenant, obviously, but not as -- as to the property
owner.
And the property owner is not an unimportant
person. The property owner comes down here, buys
property, generates revenue for the city, rents
property to people, and in the case of this property
owner, nine properties in the City of Temecula, and
met with Mr. Watson.
To his credit, he didn't deny the meeting, he
just said he didn't recall it. And I believe he
didn't recall it. I'm sure a lot of people want to
talk to him.
But the administrative law judge noted in her
decision that Mr. Watson acknowledged that he never
reached out to the property owner.
Now -- I've got the slide I want now.
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25 "Service on The Bank was proper. Service was not
effected on the property owner." We've gone through
this.
But if you look at Mr. Cole's testimony, it's
a primer on how you serve an administrative citation.
He says, "I mailed those certified and
regular mail. I mailed them to the agent for service
of The Bank."
And if you look at the last answer on the
slide, he says, "I did not initially mail this civil
penalties to Mr. Solomon. We discussed internally
about, does the owner know? Let's let the owner
know. So I sent the letter that we discussed on
August 20th."
And then he was asked -- he says that they
mailed them regular mail to Mr. Solomon and
Ms. Moore, but he mailed them certified and regular
mail to The Bank's agent for service of process.
So I'm not sure why they digressed from the
procedure regarding the property owner. Some
misunderstanding. Hard to believe it was deliberate,
but that's what was done.
And there's no debate about this. This
isn't -- there's no spin. There's no evidence that
it happened any differently than I'm telling you.
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25 And as we will see in a minute, the City has
a really heavy burden here. It's clear and
convincing evidence, and I will show you before I
finish, California Supreme Court saying clear and
convincing evidence is evidence that is highly
probable and compels the unhesitating assent of every
reasonable mind.
I'm paraphrasing, but I'm within a word or
two. It's not as severe as beyond a reasonable
doubt, but it's way, way above preponderance of the
evidence.
When you look at this record, there's no
clear and convincing evidence that you could revoke
as to the property owner. There's no reason that you
can't revoke, if you choose to, simply as to the
restaurant owner.
This business of revocation -- and this is
why Mr. Watson said they didn't -- even in regarding
The Bank, even after all that -- those months, he
testified, quote, "This is not a decision we made
lightly."
And I believe him. He did not make that
decision lightly. He gave -- he -- from the City's
perspective, if I were the City, I would say we gave
them every chance. What more can we do?
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25 If you believe that's a valid Conditional Use
Permit, I completely agree with you. He did give
them every single chance. Didn't make the decision
lightly, and they shouldn't make the decision lightly
because it's capital punishment. It's the most
severe punishment you can provide, and there's no
reason in the world that should be administered to
the property owner here.
I can understand the temptation to do it,
because you can kind of think, well, there were
letters sent there. Yeah, it's not exactly what the
rule says, but if the property manager didn't tell
them, whose fault is that? We're not going to
require what the code says.
But that would not be the right thing to do.
That's not what you're sworn to do. I understand it
might be what you want to do, but it's not what you
were sworn to do.
because failure to report to the landlord when all
these violations were being alleged, and Ms. Lane
testified that she did not know of that requirement.
Now, we
heard from Ms.
Petrusis that
in June
or July of 2021,
Ms. Lane told
Mr. Pinkerton,
the
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25 property manager, about the violations, but that's
not the testimony.
I'm not casting the first stone at
Ms. Petrusis. She's -- she's been honorable. So I
cross-examined Ms. Lane, and this is transcript, day
two, 169, lines 11 through 19.
"Okay. I understand now you had a
conversation with David Pinkerton. And was this
conversation referring to the conversation where he
called you about the parking lot?" Let me start
there.
It wasn't a situation where she contacted
him. He called her about the parking lot. The
testimony was there were problems in the parking lot.
Mr. Solomon caused all those cameras that Mr. Penman
told you about to be put in the parking lot. Also
testified there was a loud speaker system. All kinds
of crazy stuff was happening in that parking lot.
You'd think it was a wild fraternity party.
But it had a monitor, a dispatch system, to
send somebody out there if necessary. And here are
these people getting drunk, or whatever, in the
parking lot, and somebody is watching them and yells
over a live loudspeaker, Get out of here, and it
worked effectively.
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25 So that was the parking lot they're talking
about. So she -- so I asked her, "Am I clear with
you what I'm talking about now, the parking lot
conversation?"
The answer was, "Yes."
"Which is then approximately late June, early
July of 2021; am I correct?"
Answer, "Correct."
So then page 170, this is day two, lines 19
though 22 -- 23. "I recognize your testimony. You
said that call you had with him was a long time ago
and you said you were being hassled by the City
attorney." The court -- "Am I correct you told him
that?"
Answer, "Yes."
And then, "Do you know, Ms. Lane, whether it
was this conversation or some other conversation
where you said to him, 'I've gotten some citations or
official communication from the City'.
She said, "I know we had it in that
conversation. I don't know if we had it in a
previous conversation as well."
So then I asked her, "Okay. As best you can
tell me, you said before it wasn't detailed. What is
your best recollection of what you said? And let me
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25 tell you what I'm trying to get at. You just
mentioned I'm getting hassled, or did you say I have
gotten a citation? And if you don't know, say you
don't know, but be as precise as you can."
Here the testimony. "I actually -- I would
actually be guessing if I said. I know -- I know I
told him we were being hassled. I couldn't honestly
say if I said exactly if there were citations, not
citations, what it was about. Like I said, it was --
it was -- like I said, it was mostly --" and then
that was the end of that topic.
But she didn't know what she told them. She
knows she talked to them about the parking lot in
June or July of 2021. She doesn't know that -- if
she talked to him about the citations.
Again, he contacted her about the parking
lot, not about citations. So there was a little -- I
understand the confusion there, but the version you
were given by the City attorney was different than
what Ms. Lane actually testified to.
And there was one other statement by the City
attorney that Mr. Solomon knew about these citations
in March of 2022, because that's when some of them
showed up at his office.
As I said, they weren't sent certified mail.
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25 His testimony, which was never impeached, was that he did not get those citations. They weren't delivered
to him.
He was told -- he learned about them after
Ms. Petrusis told him we're going to try to -- we're
trying to revoke your permit on July 1st.
Then he said, to quote Vince Lombardi, What
the hell is going on here? Contacted his people, Did
you get any notices, whatever? And that's when he
saw the 16 from March.
Now, I mentioned the requirement of clear and
convincing evidence. I wanted to show you that.
We talked about due process is no less than
the City Code. The clear and convincing evidence
standard, the Supreme Court precisely says, "so clear
as to leave no substantial doubt; sufficiently strong
to command -- to command -- the unhesitating assent
of every reasonable mind."
Now, there's a Justice called Walter Croskey
who once said -- not a Supreme Court Justice, an
Appellate Court Justice -- who once said, That's too
strong. That almost sounds like even a tougher
standard than beyond a reasonable doubt. And he
wanted the Supreme Court to say, Oh, it's really not
as strong as we said before. They wouldn't.
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25 That's the standard here. That's what you
are charged with reviewing, is the evidence
sufficient to revoke -- is it clear and convincing to
revoke the permit as to this permit holder?
That's the permit holder I represent and
that's the permit holder that's entitled to due
process.
Now, I want to -- I'm going to repeat
something. I don't like to repeat myself, but this
is one that I think is worth repeating.
If the City, in August of 2021 when Mr. Cole
sent his letter to Mr. Solomon saying I want to
inform you that there are violations, if the City
corrected its records of that, as the City attorney
said -- she's going by what the City has told her --
if they corrected their records then and began
sending all these notices at that point to the
Wilshire address, why -- why in the world when it
came to a really important piece of mail, the
revocation letter of May 19, why was that sent to
Zip Third at The Bank's address if they had been
using the correct address all this time?
Now, I understand anything is possible.
Mistakes happen. I'm simply suggesting it's not
clear and convincing that all these notices went to
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25 Zip Third.
But the overarching point I want to make --
and this is a terribly important point because it's
right in your code -- even if they all went there,
even if not only did they go there, if Mr. Solomon
was at the Los Angeles Coliseum at a football game,
and in front of a hundred thousand people the City
said, Mr. Solomon, we've been sending addresses --
we've been sending letters to your Wilshire address
regular mail, that still wouldn't comply with the
City Code, and that's because somebody at the City,
when they wrote this code, decided we are going to
really respect the rights of a permit holder. And
that's what I'm asking you to do.
I'm asking you, when you review this
administrative law judge's decision, to respect the
City of Temecula Code. That's what due process
requires.
As I say, I -- I would love questions. Any
question you want to ask, boy, would I love to have
them. Because otherwise, you know, from the advocate
point of view, you really want to know what the
people who are going to make the decision are
thinking. And if I miss something or if I misspoke
or you think I misspoke, please hit me over the head.
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25 COMMISSIONER TURLEY-TREJO: Are you through
with your presentation, then?
MR. EDWARDS: Well, I've got four minutes
left, but I -- I felt --
COMMISSIONER TURLEY-TREJO: Go ahead and
finish up your presentation.
MR. EDWARDS -- I -- I felt that -- okay.
I'll tell you what. I will finish my presentation.
COMMISSIONER TURLEY-TREJO: Okay. Thank you.
MR. EDWARDS: I was going to sacrifice some
of my time, but I will finish it.
The only other point I would make is if
Mr. Solomon had gotten these notices, he would have
to be a fool to ignore them. Nobody wants to receive
a bunch of notices like this and ignore them.
Mr. Solomon testified he's been involved in
hundreds of properties for 40 years. He's got nine
properties in Temecula.
Do you know happens if somebody gets a lot of
notices and ignores them? Do you know what happens
if somebody -- something happens in that restaurant
that somebody says he should have known was an
existing hazard?
He gets sued. It's a risk. If you're on
notice of something, this is civil liability, not the
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ou have some responsibility. We're not
governed by the Temecula code. You got a bunch of
letters. You should have done something about it.
He would have to be a complete idiot to
ignore notices he received by regular mail, or any
other way. Again, that doesn't have anything to do
with due process, but it does have to do with the
need to follow the City Code, and it does, I think,
impeach the idea that he knew about this before Ms.
Petrusis told him on July 1st telephonically, which
the City could have done at any time.
He owns nine properties. He wants to be a
friend of the City. If they call him, do you think
he's going to reject the call? He -- he came down
here and introduced himself to Mr. Watson, and he
testified he's never had problems like this in any
other city, not with his hundreds of -- more than his
hundred other projects.
With that I will just remind you I very much
respect that you took an oath. I hope you will
respect due process here. I understand all of the
arguments that due process was given to The Bank.
Nothing remotely resembling the due process
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25 that the City of Temecula promulgated was to adhered to here. It simply wasn't. Not because of bad
motive, not because of incompetence. My theory,
inexperience.
I commend the City for being -- and I commend
Mr. Watson for saying we don't make these decisions
lightly. You obviously don't.
Ten years without revocations, that's a very
honorable record. Please continue that honorable
record by not revoking as to Zip Third. I've
concluded.
COMMISSIONER TURLEY-TREJO: Thank you, sir,
for your presentation.
At this time is there -- are there any
clarifications?
Ms. Fox, do you have any clarifications at
this time with this presentation that you can give
our Commissioners, or should we go ahead with
questions?
MS. FOX: I think we should go ahead with
questions, Madam Chair.
COMMISSIONER TURLEY-TREJO: Okay. All right.
So are there any questions?
We'll start on this end.
COMMISSIONER RUIZ: Thank you, Madam Chair.
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25 Thank you, Mr. Edwards. Just one clarifying
question here because there's been so many different
dates and --
MR EDWARDS: Sure. Absolutely.
COMMISSIONER RUIZ: -- you know, thrown out
here.
So what is the date that you say that
Mr. Solomon was first notified of the citations that
the City was issuing?
MR. EDWARDS: First notified Julv 1 by
Ms. Petrusis.
COMMISSIONER RUIZ: July 1?
MR. EDWARDS: That's 2022.
COMMISSIONER RUIZ: So nothing -- nothing
prior to '22?
MR. EDWARDS: May I expand on my answer?
COMMISSIONER RUIZ: Please.
MR. EDWARDS: Okay. When he was notified on
July 1 -- and thank you very much for your question.
I really appreciate your engaging this.
When he was notified on July 1, his testimony
was he contacted his office and said have we gotten
any notice of any citations? Give me every piece of
paper. And they assembled eight envelopes containing
sixteen violations.
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25 Now, after this, to Ms. Petrusis' total
credit, she made sure that he got notice of every
violation as this proceeding was going on, and he
testified that he had several conversations with
Ms. Lane, which she does not deny, saying, Comply
with the code.
And she said, I'm advised by my lawyers that
if I comply with the CUP -- excuse me. I misspoke.
I said the code and I meant the CUP.
If I comply with the CUP as the City contends
it's written, I will admitting that I have a weak
case.
So unable to negotiate that with her, he then
hired a bankruptcy lawyer and got the order you saw
on August 23, and that was necessary because he could
not initiate an unlawful detainer, as you probably
all know, as an automatic stay.
You have to get permission from the court
before you sue somebody who's in bankruptcy. The
state prevents all -- if you're suing them, your
litigation stops. If you're not suing then, you've
got to go in and get permission from the court.
So he went in, asked for relief from the
stay, but also asked that the bankruptcy be
dismissed. The court dismissed the bankruptcy and at
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25 that point he was free to bring an unlawful detainer as of August 23.
But the point I'm trying to make, and forgive
me if I'm exceeding your question, but I think you're
getting at what action did he take and when did he
know and what did he know, and all that. He -- the
action was very prompt after learned.
COMMISSIONER RUIZ: Okay. So but July 1st is
when he received and then -- then discovered there
was multiple stuff that was sent to his office prior
to that day?
MR. EDWARDS: As starting in March, they had
received some envelopes, total of eight that had
sixteen violations, but by regular mail.
COMMISSIONER RUIZ: Thank you.
MR. EDWARDS: Nothing certified.
Thank you, sir, for your question. I
appreciate it.
COMMISSIONER WATTS: And following up on
that, nothing was communicated to your client from
the office that received those 16 violations?
MR. EDWARDS: Nothing was communicated until
he initiated it, and if -- if -- looking at you
right -- he initiated to the office on July 1, What's
going on, and what happened was -- and again,
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25 Commissioner Watts, if you want to say the property
manager should be punished, I would agree with you,
but the City didn't comply with the code. It wasn't
sent certified.
He -- the testimony was unimpeached. He
received after July 1 these 16 envelopes -- excuse
me -- 8 envelopes, 16 violations, that had been sent
all by regular mail, and the testimony was that the
property manager contacted Ms. Lane who said, I'm
working this out with the City. We've operated the
same way for nine years, and that's true. There's --
nobody denies that.
What happened, that 2012 modification was
never enforced for nine years, and then they -- then,
which the City, according to how it's written, has
every right to do, the City, as Mr. Watson testified,
reached out to the property owner and said you're
open too late.
I think the loudness came up later. But
Mr. Solomon was involved in none of that.
But to answer your question directly, yes,
the office did -- property manager did not tell him
about those letters, and I'll go further and say they
should have. But I will go further still and say if
it had been certified mail, it's hard to believe they
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COMMISSIONER WATTS: Okay. So the property
manager did not --
MR. EDWARDS: Did not talk to him.
COMMISSIONER WATTS: At all?
MR. EDWARDS: Did not at all.
COMMISSIONER WATTS: Even though he had the
copies of the letters?
MR. EDWARDS: Did not. That's true.
COMMISSIONER WATTS: Okay. That's all the
questions. Thanks.
COMMISSIONER TURLEY-TREJO: Any questions
down here?
COMMISSIONER SOLIS: I think I had the same
question.
MR. EDWARDS: Sure.
COMMISSIONER TURLEY-TREJO: Okay.
COMMISSIONER SOLIS: Which was answered.
Thank you.
COMMISSIONER HAGEL: Okay. Something that
you didn't mention, and I just want to clarify, the
CUP that you believe that is in place for your client
is a Type 47 license, background music allowed, and
the hours, I think, were 11:00 to 10:00 and 11:00 to
11:00, you know --
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you're -- I don't know the number, if it's 47, or
what, but what I do know is this.
I don't -- just as a human being walking down
the street, talking to you not as a lawyer now, it's
hard to believe that anybody, as I think I said
earlier, would surrender those money hours where you
make -- people drinking in bars late at night for the
music, but that's what that CUP says.
And to expand on the question that was asked
earlier, Mr. Puma testified that -- and I think
Mr. Penman -- Mr. Puma testified, I went in there, I
told them what I wanted, I'd been on the business --
Old Town Business Association, which Mr. Solomon was
a founder of when they renewed that association
later.
Nobody told me that they were cutting the
hours. I didn't know, and I didn't read it. I put
in a drawer. Mr. Penman was -- his last description
of that accurately reflects the testimony.
But Mr. Solomon bought the property, I think,
in 2016, his entity did. '15 or '16. Sorry if I
don't have the exact year. And that CUP was in
place, and The Bank was in that restaurant at the
time and they were operating the same way they had
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25 for nine years -- not nine years -- three or
four years at that point, you know, until the late
hours, and they continued doing that until -- and
only stopped doing it after the administrative law
judge hearing.
Did I answer your question?
COMMISSIONER HAGEL: Yeah. I just want to
know what your client's understanding of whether that
CUP was in place or not. That's -- that's all.
MR. EDWARDS: That was the most recent CUP.
COMMISSIONER HAGEL: Okay.
MR. EDWARDS: So we -- unless somebody says
that we're going to overturn it because --
COMMISSIONER HAGEL: Right.
MR. EDWARDS: -- it was a word processing
error. The answer to your question, sir, is yes.
COMMISSIONER HAGEL: Okay.
MR. EDWARDS: Thank you.
COMMISSIONER HAGEL: That's it.
COMMISSIONER TURLEY-TREJO: Okay.
Commissioner Watts?
COMMISSIONER WATTS: Yeah. Going back.
So the first time your client heard about the
violations was from the City calling?
MR. EDWARDS: From -- to her total credit,
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25 from Ms. Petrusis calling, not -- you know, the City lawyer who has had to continue -- I -- I will just
make an assumption here.
I'm going to make an assumption that when she
looked at the record, she saw that they had sent the
notice of revocation to Mr. Solomon, Zip Third, at
The Bank Restaurant, and she wanted to make sure he
knew there was a revocation proceeding.
But whatever the motive for the call was, she
told him -- this was unrefuted testimony -- on
July 1, We are trying to revoke your permit, and he
said, What? And, you know, she spoke to him again on
July 5th.
So this is Friday -- again, I want to
emphasize, he's not hard to reach. She calls him
Friday. This is the 4th of July long weekend. July
1st is the Friday.
He calls her back within 15 minutes, and to
her credit, she called him back 10 minutes after
that. So it wasn't hard to tell him what was going
on. Anybody at the City at any time could have
called him.
COMMISSIONER WATTS: Okay. And the letters
that were sent to the Wilshire address were all prior
to July 1; is that correct?
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25 MR. EDWARDS: Yes, they were.
COMMISSIONER WATTS: Is the same property
manager still employed by your client?
MR. EDWARDS: That's not -- that's not in the
record. I'll answer if you want me to, but I don't
want to -- I don't think I'm supposed to exceed the
record, and I always try to play by the rules.
I think I'm not supposed to --
COMMISSIONER WATTS: That's fine.
MR. EDWARDS: I'll tell you anything you
want.
COMMISSIONER WATTS: No. You don't need to
answer that --
MR. EDWARDS: Let me just say -- let me just
say there was obvious disappointment; okay?
COMMISSIONER WATTS: Okay. Thank you.
MR. EDWARDS: I can say that because that
came out in the hearing.
COMMISSIONER TURLEY-TREJO: Okay. Any other
questions of Commissioners? Are we good?
Okay. All right. Thank you so much --
MR. EDWARDS: Thank you very much.
COMMISSIONER TURLEY-TREJO: -- for your
presentation. We appreciate your time. Thank you.
Okay. So at this time we will ask
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25 Ms. Petrusis to come up for her rebuttal, and Denise, can you clarify the time left?
MS. JACOBO: Twenty minutes,
fifty-eight seconds.
COMMISSIONER TURLEY-TREJO: Okay. All right.
Thank you.
REBUTTAL SPEAKER
MS. PETRUSIS: Thank you, Madam Chairperson.
Not quite as tall as Mr. Edwards, but I
appreciate -- I might steal that idea from him.
So I wanted to begin first in response to
this allegation that I got Ms. Lane's testimony
incorrectly.
On page 1518 of your packet there's a page of
transcript. My question to her, "In 2021 did you
ever speak to anyone at Zip Third Investments or
Metro Resources about the civil penalties or
citations?"
Answer, "Yes."
Question, "And do you remember who you spoke
to?"
Answer, "David Pinkerton."
My question to her, "What is Metro
Resources?"
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25 Answer, "They're the management company for
the property owner."
Question, "And by 'property owner,' are you
referring to Zip Third Investments?"
Answer, "Yes."
Apparently Ms. Lane changed her testimony.
Moving on. So Mr. Edwards referenced the
definition of responsible party and
Code Section 1.21.020(c). "Any person whom an
enforcement official determines is responsible for
causing or maintaining a violation."
It's City staff's position that it was
The Bank that caused and maintained the violation.
Code Section 1.21.050(b) references the
business owner. It's the business owner that
receives notice of the violation and the specific
requirements of how to serve that notice or that --
that citation, in this case.
It does not require -- the code does not
require separate notice to be given to the underlying
property owner, and Mr. Edwards cannot point to a
code section that requires that.
The Bank was properly served with citations
and civil penalties; however, it went one step
further and it put Zip Third on notice that its
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25 tenant was violating the CUP.
It is disingenuous for Zip Third to claim it
wasn't properly notified. It's simply unbelievable
that someone receives a piece of mail at their
official address from the City of Temecula addressed
to their business referencing a property owned by
that business notifying that their tenant is in
violation of the Municipal Code and that they would
then disregard that notice and claim, Well, it's not
proper service. We don't -- we don't have to do
anything.
As the ALJ found, Zip Third was on notice of
the violations since at least August 2021.
Mr. Solomon testified that he did not visit his
office often during the pandemic, but his decision
not to visit his office or make arrangements,
apparently, to have mail forwarded is not the City's
responsibility.
There's been, I think, this argument or
suggestion about the CUP shouldn't be revoked as to
the underlying property owner. There's only one CUP.
The code does not provide for an opportunity
where a CUP is revoked as to a business but not to a
property owner. I don't know what that would look
like.
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25 The City -- the City issues a CUP that allows
that business to operate in a certain way, and I
don't know how it could be administered effectively
if the CUP had flip-flops between, okay, now it's in
effect but now it's not in effect.
The Municipal Code also does not require
staff to specifically work with the property owner or
with the violating party before initiating a
revocation process.
There's been some references to, Oh, well
this was the established procedures, but really
Mr. Watson's testimony referenced a philosophy.
There are not separate requirements in the
code that staff work with, collaborate with an
individual or with a business owner or property owner
before issuing citations or before initiating
revocation.
Turning to some of the arguments that were
made by Mr. Penman, he mentions, A staff person
inadvertently made an error on the hours contained in
the 2012 Conditions of Approval, and then he accused
Mr. Fisk of perjury.
The Bank is trying to manufacture some form
of uncertainty when it comes to what the operating
hours are in the approved CUP.
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25 Mr. Puma testified that he received the 2012
Conditions of Approval, but didn't look at them.
Ms. Lane testified that she threw it away when she
was doing a clean -out of the restaurant.
Not to belabor this point unnecessarily, but
there's no requirement in the code that an individual
receiving a CUP must sign the Conditions of Approval
as being accepted.
The Bank spent a considerable amount of time
taking issue with the evidence of criminal activity
associated with The Bank, whether or not those two
shooting events were properly attributed to The Bank.
Sergeant Hephner's testimony was based on his
personal observations of the many, many instances of
public intoxication, of DUI arrests, of individuals
saying that they had come from The Bank, of his
opinion that there were over -serving issues at the
restaurant.
Mr. Cole also testified based on his personal
observations of drunk and disorderly instances of
picking fights with police officers.
The ALJ found their testimony to be credible
and persuasive. It's our position that the Planning
Commission can also find their testimony to be
credible and persuasive.
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25 Notably, The Bank does not dispute that the
noise violations occurred or that they violated the
live entertainment provisions of their CUP or that
they operated and sold alcohol in excess of the
permitted hours.
None of those violations are in dispute.
They're focusing only on the amount of criminal
activity associated with The Bank.
Any reason about why the hours were changed
back to 2007's hours is protected by deliberative
process privilege, but what they do have is
Mr. Fisk's unequivocal testimony that there was an
intentional decision made to roll those hours back.
There's been a suggestion that, Well, they
only wanted to add live entertainment, but it's a
condition of approval. Their request to modify the
CUP was modified -- or it was granted, and that
condition of approval was that their operating hours
were changed.
Mr. Penman also mentioned about revoking the
CUP is going to take away individuals' livelihood.
There's no evidence of that in the record, but I want
to point out that The Bank -- if the CUP is revoked,
The Bank is not losing its ability to operate, it's
losing its ability to sell distilled spirits and to
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25 have live entertainment.
And I don't think I have anything further,
but, of course, if the Commission has any questions
for me, I would be happy to answer.
COMMISSIONER TURLEY-TREJO: Thank you,
Ms. Petrusis.
Are there any questions?
Yes, Commissioner Ruiz?
COMMISSIONER RUIZ: Thank you. I just want
to clarify a couple things.
So you mentioned first the City Code is only
required to notify the business owner for citations;
is that correct, and not the property owner?
MS. PETRUSIS: The business owner is who they
determine to be responsible for the violations, and
so the business owner, i.e. The Bank, was cited.
COMMISSIONER RUIZ: Okay. And then even
though we've got two separate businesses here being
represented, just to clarify, that's one CUP;
correct?
These are not two separate items, it is one
CUP that runs with the land that we all understand;
correct?
MS. PETRUSIS: Yes, Commissioner. And I've
heard some refer to the 2012 CUP. There's just one
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25 CUP that's been modified twice.
When we're talking about 2012, we're talking
about the Conditions of Approval that are associated
with that one CUP, and they have changed.
COMMISSIONER RUIZ: Thank you very much.
COMMISSIONER TURLEY-TREJO: Commissioner
Watts?
COMMISSIONER WATTS: If a CUP is revoked, and
recognizing the City has not done that previously,
would the property owner have redress as far as
reapproaching the City for a new CUP?
MS. PETRUSIS: I don't know what the limits
would be on a property owner applying for a CUP. I
think that would be handled in the normal course.
COMMISSIONER WATTS: Thank you.
COMMISSIONER TURLEY-TREJO: Commissioner
Solis?
COMMISSIONER SOLIS: No, thank you.
COMMISSIONER TURLEY-TREJO: Nothing? Okay.
All right. I don't think I have any
questions. I appreciate your comments.
Any other questions before we close this part
of the hearing?
MR. EDWARDS: I have a question, but I don't
think you'll let me ask it.
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25 COMMISSIONER TURLEY-TREJO: Yeah. I don't
think so. Sorry.
MS. PETRUSIS: My pleasure.
COMMISSIONER TURLEY-TREJO: All right. Thank
you. Okay. Are we good? Does anybody need a break?
Are we good? Okay. Gary, are we good? Okay.
All right. So at this time we are going to
ask for public comments.
And Denise, do we have any public comments?
MS. JACOBO: Yes, we do. We've received one
letter for correspondence and we've received two
request -to -speak slips here.
COMMISSIONER TURLEY-TREJO: Okay. So then I
will go ahead and read this paragraph on public
comment for those that are speaking here today.
A total of 30 minutes is provided for members
of the public to address the Commission on matters
not listed on the agenda.
Each speaker is limited to three minutes.
Public comments may be made in person at the meeting
by submitting a speaker card to the Commission
secretary or by submitting an e-mail to be read aloud
into the record at the meeting. E-mail comments must
be submitted to [email protected].
Speaker cards for in -person comments will be
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25 called in the order received by the Commission
secretary, and then if time permits, e-mail comments
will be read.
E-mail comments on all matters must be
received prior to the time the item is called for
public comments.
All public participation is governed by the
council policy regarding public participation at
meetings adopted by Resolution No. 2021-54.
Our first public speaker, please?
PUBLIC SPEAKER
MS. JACOBO: I will read into the record the
letter of written correspondence that was received or
e-mailed to our city clerk's office on Tuesday,
February 14, at 9:58 a.m. from Alan Ronska.
"Erica, two shootings, one death, and three
people shot, forty-six violations, loud, vulgar music
until 1:30 a.m. A nuisance to all the surrounding
businesses.
After all I have listed, I am amazed in why
the City of Temecula is even remotely considering
extending the CUP, question marks. Outrageous to
waste the taxpayer, dollars symbols, and an insult to
all of us at Old Town Temecula small business owners.
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25 Please reconsider extending the CUP. This
place brings a bad element to Old Town Temecula that
we can all do without. Once they extend the CUP,
they will revert back to previous behavior.
FYI, the outdoor music is so loud, our
patrons have to speak louder in order to converse,
exclamation points. Unacceptable, exclamation
points.
Alan Ronska Properties."
COMMISSIONER TURLEY-TREJO: Okay. Thank you.
And public comment?
MS. JACOBO: Yes. Our first speaker is
Steven Slaughter.
COMMISSIONER TURLEY-TREJO: Okay.
Steven?
PUBLIC SPEAKER
MR. SLAUGHTER: Hello. Thanks for hearing
me.
My name is Steven Slaughter and I'm a
resident of Temecula. I have worked at The Bank
Mexican Restaurant and Bar off and on since 1983.
I've worked for all three owners at the time.
I do have a full-time job. I'm a liquor
buyer for a grocery company, so I'm very familiar
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25 with the on -sale protocols in the liquor industry.
I do work at The Bank one day a week. It was
around 2008, like they said, that The Bank was
permitted to stay open later in the evening two
nights a week until approximately 1:30 a.m.
The new owners, Amanda and Ryan, have
continued to keep the restaurant open. They do take
the responsibility of liquor license holders very
seriously.
The tragic -- the tragic incident that
happened at The Bank made us all victims, but then
it -- it also only strengthened our rigorous safety
protocols.
I've been to many other bars and restaurants
and nightclubs in Old Town, Temecula that do not have
as rigorous as security procedures like we do at
The Bank.
In fact, at this point I do feel very safe
and confident working at The Bank because the owners
have provided experienced security personnel.
The one thing I just want to leave you with
here today is that the owners and management at
The
Bank are
responsible
individuals,
and they do
take
their --
again, they
take their
liquor license
holding very responsibly.
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25 They're -- it's an honest -to -goodness just
mom-and-pop operation, and they're just trying to
make an honest living and to put food on the table
for their children. I think they should be willing
to continue to do so and operate in the way they
have.
Steven.
Thank you very much for your time.
COMMISSIONER TURLEY-TREJO: Thank you,
Next public comment.
MS. JACOBO: Cesar Rodriguez.
COMMISSIONER TURLEY-TREJO: Hello.
PUBLIC SPEAKER
MR. RODRIGUEZ: Honorable Chairmen and
Commissioners alike, thank you guys very much for
allowing me to speak.
I'm a bartender at The Bank. Started there
as a busser, and has been a place that has showed me
the industry as -- of serving, as well as giving my
utmost honesty and love to this community that I --
have now become a part of myself, thanks to my
emotional ties to The Bank.
Amanda and Ryan are formidable and completely
amazing managers. They've been there and kind of
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25 changed the place since the dynamic that had made it a fun and -- a fun and great place to be able to come
and enjoy a good time.
During COVID they -- they established a great
entertainment that allowed everybody from all of
Southern California to come and truly experience and
enjoy what Temecula has to offer.
If it ended at The Bank, it started at our
beautiful wineries, and it only -- only gets better
from there.
I'm just happy and fortunate to be able to be
here, and as somebody who's -- who experiences the
night life here in Temecula, The Bank is probably one
of the least places that I feel that I don't feel
safe at.
Every other place that I've ever been to
brings in thugs from other places or up north, down
south, and -- and have less -- less security guards
there, as my -- my correspondent, Mr. Steve, said,
that don't ever -- in other ways, seem very
unprofessional.
And I've seen other instances of -- of, you
know, very, very untrained people trying to take care
of discourses in other places as well, too.
I'm -- like I said, I'm fortunate for the
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25 employment that I've -- that I've gotten from them,
and all -- all the safety protocols they've
tooken[sic] to be able to ensure that nothing of the
manner that happened at The Bank ever happens again
or will ever happen again.
Like I said, I feel very safe there, and I'm
happy that you guys let me speak on behalf of The
Bank.
COMMISSIONER TURLEY-TREJO: Thank you, Cesar.
MR. RODRIGUEZ: Thank you very much.
COMMISSIONER TURLEY-TREJO: Okay. Are there
any other public comments?
MS JACOBO: There are no further requests to
speak.
COMMISSIONER TURLEY-TREJO: Okay. And just
to give anyone a chance in the audience that has a
public comment, if you would like to come up at this
time -- and just to clarify, they would only have
three minutes.
I think the timer said five.
We have another -- okay. Come on up.
And if you'll just fill out a speaker card
after you're done and make sure that the secretary
has that, that would be great.
MR. PARENT: I will. Thank you.
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25 name?
COMMISSIONER TURLEY-TREJO: And what is your
MR. PARENT: I'm -- I'm Rod Parent.
COMMISSIONER TURLEY-TREJO: Okay.
PUBLIC SPEAKER
MR. PARENT. I'm Ryan's father. I've lived
here for 25 years with my lovely wife and raised a
family here.
These -- the death of this young man at the
restaurant was devastating to us, to this family, as
well as to the family of the deceased young man.
They are working really hard. They're
running a small business. They're doing the best
that they can. They've made mistakes, but the
operation, the permitting, is -- it's so
questionable.
Why would -- why would hours be cut by
20 hours a week, the most profitable hours, in 2012,
and the City would allow the restaurant to operate
all the way through nine, ten years, and then
suddenly pop up and cut these kids off from running
the restaurant the way the restaurant had been run
for all those years?
The police reports, the police calls to
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25 service are no higher at The Bank than they are at
any other restaurant in town, like restaurant in
town, bar.
I don't know how the tug-of-war happened
between the City and these people, but it's escalated
beyond what is reasonable.
I'm a small business owner, have been my
whole life, and I can't imagine fighting something as
enormous and powerful as the City just to stay in
business when -- when there's literally what appears
to be made up information that the City is trying to
prove a point.
The kids are trying to fight to keep -- to --
it seems almost ridiculous to pile on to these
people --
COMMISSIONER TURLEY-TREJO: You have
30 seconds.
MR. PARENT: It feels like an attack on my
family, so I hope that you understand these are human
beings. When you take away their right to a living,
it's breathtaking to me. So thank you.
COMMISSIONER TURLEY-TREJO: Thank you, Ron.
Anyone else? Okay. Come on up.
Again, make sure that you fill out a slip, a
pink slip, and turn that in to our secretary,
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25 Commission secretary.
PUBLIC SPEAKER
MR TIBBS: Understood. Thank you.
So I'm Sergeant Deshai Tibbs from the US --
the United States Military.
COMMISSIONER TURLEY-TREJO: What? Tell me
your name.
MR TIBBS: Deshai Tibbs.
COMMISSIONER TURLEY-TREJO: Deshai Tibbs.
Okay.
MR TIBBS: So I've been coming to The Bank
for the past three years since I've been back. It's
been a while, but The Bank is the only place that I
will allow my team to come to because of the least
amount of trouble or turmoil that goes on at
The Bank.
Yes. I -- I mean, I wasn't around. I was
deployed for the -- for the -- I guess the murder
that took place, and I wasn't there for that.
It's a sad situation, but we can't take away
from what's been going in Old Town. It's not just
happening at The Bank, as you guys -- I mean, sitting
here listening.
There's been other shootings and other
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25 altercations that take place. I mean, just say, we
all can't be at -- we can't be in the place at the
same time -- we can't be there for everything, I
should say, so to speak, and a situation took place.
There was no police officers in that area at
the time, as -- you know, can't say they could be.
They were doing other jobs or trying to protect
everything else that's going on.
But we can't control the other people or
civilian around the area. We can't control those --
that or how to do things that are uncontrollable, are
unknown, because we don't know what's going on with
other people's minds in situations.
The Bank has given multiple people a place to
go that they feel safe, that it was fun. It was a
growing situation.
I've seen it from when I started going there
and there wasn't many people going, to it growing to
be something where there was an abundance of people
going.
So it's a beautiful thing to see that -- the
unity that The Bank brought, and to see the City is
attempting to take that away seems to be -- I mean,
words that were used -- childish, reasons unknown.
I'm not here to bash the City. I've been
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25 living here for a long time and I love the City, so I can't say too much about it.
But I -- it does hurt to see that I don't
really have many places to tell my soldiers that's
coming from Camp Pendleton, that's coming from Fort
Irwin, you know, Hey, this is a good place that you
can send your soldiers, that there won't be no
turmoil, there won't no issues, there won't be no
problems, and now to see that, hey, that place is
about to be taken away from incidents that I can't
even speak on.
So all I could say is that this is a great
place and I can bring soldiers to this location, and
if you guys take that away, we don't really have much
of where else to go in this area. So that's all from
me.
COMMISSIONER TURLEY-TREJO: Thank you.
Appreciate you coming up. Okay. All right.
Oh. Okay. Come on up.
PUBLIC SPEAKER
MR. CUIPO: My name is Chris. I'm a DJ and
I'm the general manager of The Bank. I've been
living here since I was 12. I'm 42. One of the
pioneers of creating this night life in this area,
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25 and especially in Old Town.
To talk about my citations, as soon as
Mr. Cole talked to me about how high the decibels
were, I stopped it right away. It didn't take a
week. It didn't take two. I just did what he told
me to do.
As Shai said, you know, there's so many
incidents, and every single club, night life, it's
uncontrollable. It's part of the live,
unfortunately, and all of these finger pointing at
The Bank, yeah. No. We were with a long streak of
no fights, no altercations of any kind.
The other thing I want to touch is that the
livelihood comment, if you are going to switch it to
a 41, that does affect it. We are a Mexican
restaurant. What Mexican is going to come to the
restaurant and just drink beer? They need tequila,
you know?
And as far as that, it's like, the other
people I mentioned, you know, liquor sells, and it
really does sell, and it does make money.
You take that away, it's taking away from all
my employees as well, whether it goes to a 41 or
we're still in business.
Name one restaurant out here that survives
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25 off beer and wine that wasn't already established off beer and wine. We were beer and wine, but we
switched and made more income.
So in considering of my employees, I -- I
hope that you guys make the right decision and not
revoke the CUP. Thank you.
COMMISSIONER TURLEY-TREJO: Thank you.
Okay. Where are we time -wise -- I know, but
where are we time -wise as far as 30 minutes on public
comments?
MS. JACOBO: We have no limit on speakers.
COMMISSIONER TURLEY-TREJO: Not today? Okay.
All right.
Does anyone else want to speak?
PUBLIC SPEAKER
MR. OWENS: Trying to get my notes ready. My
name is Shawn Owens. I am the head security at
The Bank from the last, I'd say, two and a half
years.
I want to start off by saying it is a
historical building. So even if The Bank is closed,
if we are open for business, a nightclub, there's
people that's going to come and read the signs on the
building. They're going to come and be interested.
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25 They want to see the vault. They want to be more
involved in something of a building like.
So by saying that, there was a couple
incidents -- or I say that one incident -- that was
spoke about that an incident had occurred about a guy
with a gun on the property.
That goes for any other day. There's bums,
there's -- there's people that's drunk that just come
on our property to sit during our -- the time period
of when we are closed, so I feel like incidents that
happen on the days that we're closed, there's nothing
we can do.
The incident that happened with the man
passing was my brother. I was also there at the
location. I was also there at the scene. I was two
steps away from the actual shooting. Bullet hole in
my sweater, everything like that.
That night, there was nothing we could have
possibly did, because there was no arguments. There
was no fights. The location was closed.
Best thing we can do, just like every cop
tells us on the weekend, is to get people off our
property. Anything that's off our property, we have
to contact them.
So all the calls and incidents that we do
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25 have coming in, they're not big incidents. They're
just somebody is on the property, somebody is drunk,
somebody's not just listening to the after hours of
what we're giving.
Since we changed our hours, I can't think of
no incidents that can possibly be named since we have
been -- have been changed of the hours that we
accepted.
There's just so much. I just have three
It's a small location. It's a small
business, so there's only so many people we can have
in our location. So even with capacity or not, it's
not like we can fit a lot of people at, say, Baily's
or any other bigger locations.
So we are really strict about enforcement,
even before the incident happened, and our security
is, like, so locked on. Our -- the bosses, the
owners, they're real strict on us.
The cops -- I can see since the incident
happened, a lot of cops have changed their areas,
because I'm seeing new officers, but even officers
that was there, they -- they feel freely and
comfortable to come and walk by our business or come
in and have conversations with our security guards
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25 because they know of the job that we do.
Like I said, the incidents that did take
place around The Bank, there's nothing that security
or owners should be -- can do, because we're not
allowed to even step off property.
So anything that's down the block, anything
like that that we're getting blamed for, it had
nothing to do with us. No incidents came from us.
We're just doing our job to stay on property.
So if any officers happen to get mad because
we couldn't help, or anything like that, my job is to
stay on property and protect my business.
That's really it. I hope it continues to
stay open. It is cutting a lot of hours from the
staff and everything and from my family and
everything. I have to provide. And I say that's
pretty much it, I guess.
I just hope you guys make the right decision
for us, please, and so we show and prove to you guys
that it was a good decision, and that we can continue
going with the historical building that we have.
COMMISSIONER TURLEY-TREJO: Thank you for
coming on up.
Okay. Anyone else? Last chance. Okay. All
right.
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25 So all right. So at this time, because we
have had public speakers, there's five minutes
allotted to the City attorney, The Bank attorney, and
Zip Third attorney to respond to the public speakers.
So we will start with the City attorney.
Five minutes.
MS. PETRUSIS: I don't think I need to
respond to anything. I don't have anything further,
but, of course, if you have questions. Thank you.
COMMISSIONER TURLEY-TREJO: Okay. All right.
The attorney for The Bank, Mr. Penman. Five
minutes.
PRESENTATION SPEAKER
MR. PENMAN: Thank you. The public speakers,
I think, did very well, underscored the true
situation at The Bank, supported by the evidence in
the transcript.
It's not the place that was described to
Mr. Watson, and it's not the place that Mr. Watson
described, although I agree that he backed off of
that a little bit in his testimony.
It's certainly not the place that the
administrative law judge saw it to be, and I hope
that it is not a place that you see through the eyes
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25 of some people in the City who are desperately trying to do something about the crime that has occurred in
Old Town, but there is so little that they can
effectively do.
And as a result, this matter is before you,
first this morning and now this afternoon.
And I again can only ask you to do the right
thing, not the right thing for the property owner or
for the business operators alone, but the right thing
for the City of Temecula.
The fact that these -- you heard the security
gentleman speak. As the evidence shows, they have
doubled their security after the tragic death, and as
Mr. Watson's testimony said, all they can do is close
on time.
But the murder happened within the time they
were allowed to be there, and then Mr. Watson said
there's really nothing else -- he didn't have any
other discussions of what to do.
Revoking the CUP is not the solution to this
problem. It's -- it's not the way to go.
Thank you very much for your time.
COMMISSIONER TURLEY-TREJO: Thank you.
Mr. Edwards?
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25 PRESENTATION SPEAKER
MR. EDWARDS: Thank you. I want to respond
to the letter that was written because I think it
relates to questions that Commissioner Ruiz and
Commissioner Watts had.
What you heard in that letter was the
restaurant's noisy, it's dangerous, close it down.
There was no mention whatsoever about the property
owner, and that -- that is a knee-jerk reaction.
The first things -- one of the first things I
said to you today was -- and I read you, and it's on
a slide -- the administrative law judge at the start
of the hearing says, Am I hearing from you that there
are two permit holders here, both the property owner
and the restaurant operator? Ms. Petrusis, the City
lawyer, said, Yes.
Now, you're absolutely right that there's one
Conditional Use Permit, and Commissioner Ruiz,
100 percent, right on.
Commissioner Watts, you're absolutely right
that runs with the land, but here's where the rubber
meets the road.
Mr. Watson, to his credit, correctly
testified, and I quoted this, "A CUP conveys a vested
right to the property owner."
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25 And the city has this procedure. You let the
owner know. Here's a citation, here's a violation.
And you don't -- you don't just send them a letter
and say we're going to revoke your permit out of the
blue.
Due process requires -- even if the city code
says, Well, we only -- the City is arguing, Well, we
only have to give notice to the business owner, and
that's obviously to the extent the person who wrote
that e-mail or letter knows there are two permit
holders here. They're certainly ignoring my client.
It would not be due process. I don't think
either of you believe -- I can't -- I'm not a mind
reader. I'm making an assumption.
I don't think either of you or anybody up
here believes it is due process to revoke without
notice in accordance with the code. Due process
requires telling somebody.
You've got a property right. You're due the
process. We owe you the process of knowing what's
going on. We're telling you. This is what we do.
We're business friendly.
Now, Mr. Watson -- it's correct, as
Attorney Petrusis says, Mr. Watson's expression of
the philosophy, his words, which he also says are the
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25 practice of the City -- he didn't just say this is
our philosophy, he said this is our practice. This
is what we do.
It's true that that's not written in the code
word for word, but I emphasized before about how the
code was idiot proof.
So the point here is you could absolutely say
there are two permit holders. We are revoking the
rights of The Bank, but the owner still retains
vested right in the CUP, can operate a restaurant,
can get another tenant, can move forward.
And there's absolutely no reason not to do
it, and it would be an absence of due process if you
failed to do it.
I've got a minute and 46, and I'm happy to
get any questions. Boy, would I love them if anybody
has one.
COMMISSIONER TURLEY-TREJO: I do have a
question --
MR. EDWARDS: Sure.
COMMISSIONER TURLEY-TREJO:
unlawful detainer --
MR. EDWARDS: Yes.
COMMISSIONER TURLEY-TREJO:
of that --
-- regarding the
-- and the status
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25 MR. EDWARDS: Yes.
COMMISSIONER TURLEY-TREJO: -- and is that
still set for March 3rd?
MR. EDWARDS: Now, that -- okay. I'm -- can
I go out -- I have to ask your permission, and,
Ms. Fox, I want to address this to you also, even
though I know -- I know -- Madam Chairperson, you're
the boss.
I just don't want anybody to ever say I went
outside the record and that's not in the record,
so --
MS. PETRUSIS: We believe that evidence of
the current unlawful detainer action is new evidence
that wasn't before the ALJ.
MR. EDWARDS: Now, that's -- that's accurate.
It wasn't, because it -- we had the hearing on the --
Ms. Petrusis, correct me if I'm wrong, the 31st of
August and the 1st of September, I think, is correct.
MS. PETRUSIS: Yes.
MR. EDWARDS: And as of that time there was
no unlawful detainer.
Please remember August 23rd is the first date
that would have been feasible after that order was
entered on August 23rd.
COMMISSIONER TURLEY-TREJO: Okay.
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25 MR. EDWARDS: That's the bankruptcy order.
COMMISSIONER TURLEY-TREJO: All right.
MS. FOX: Thank you, Madam Chair. I think
that Counsel can answer the question if he has the
information.
COMMISSIONER TURLEY-TREJO: Okay.
MR. EDWARDS: Okay. Now, I will answer the
question. There is an unlawful detainer trial set.
There were -- we have an unlawful detainer lawyer.
It's not me.
I thought the unlawful detainer was set for
March 8th. If you looked it up and saw March 3rd,
you may be correct. I could be wrong on the date,
but it's the first few days of March. I know that.
I also know they waited a long time to get a
trial date, even though the code says you get a trial
date quickly. You don't. It -- the courts are
really backed up with unlawful detainers.
We're still seeing the effects of COVID, plus
it's a business case. It's going to be a little bit
more complicated, and there was extensive negotiation
with the tenant trying to get the tenant to move out.
Also, there's a lot of ways people can delay
an unlawful detainer, even though you're entitled to
a preference, but move forward as expeditiously as we
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25 could.
COMMISSIONER TURLEY-TREJO: Okay. Thank you.
Any other questions while Mr. Edwards is up
here?
Okay. So thank you.
MR. EDWARDS: Thank you for your courtesies
throughout. I really appreciate all your attention.
Thanks so much.
COMMISSIONER TURLEY-TREJO: Thank you.
Okay. So this is really our last opportunity
to ask questions before we have discussions, so if
there's any other questions of any of the attorneys,
this would be the time to do it.
So are we good? Everybody good?
Okay. And then I'm going to have Ms. Fox
right now speak a little and give us a little
guidance here at this time. That would be great.
MR. EDWARDS: Are we supposed to -- excuse
me. I just don't want to hear anything that's
attorney -client.
Are we supposed to leave when you do that?
I don't know the procedure.
COMMISSIONER TURLEY-TREJO: No. I think you
can stay.
MR. EDWARDS: Okay. Thank you.
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25 COMMISSIONER TURLEY-TREJO: Correct?
MS. FOX: Thank you, Madam Chair. Yes.
So I wanted to offer to the Commission that
now is the time for your deliberation to decide
whether or not you were going to move forward with
adopting the determination by the administrative law
judge or modifying that in any way.
I did want to add a couple of clarifications
just to get the record complete here. One watt
mentioned by counsel for The Bank, Mr. Penman.
Last evening he had asked for a
reconsideration about entering into evidence the
video from the January shooting that occurred on the
patio of The Bank.
That -- I had previously provided my
rejection of that request. That was both
evidence that was not before the administrative law
judge, also it's part of an ongoing criminal
proceeding of which the investigators and the
district attorney do not want that information
publicly released, and I also said it's appropriate
official privileges under the Evidence Code.
As well, he asked again for another
continuance. I rejected that earlier for good cause,
and so I would be -- my recommendation to this
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25 Commission that any request for continuance be again rejected.
As well, I wanted to offer a couple of points
of clarification. There was a lot of discussion
regarding the notice issue, and I wanted to invite
the Commission's attention again to the City
Municipal Code 1.21.050.
I don't believe that that provision, as noted
by the counsel for the City, is applicable to Zip
Third, the property owner. That subdivision B, as in
boy, provides that the enforcement official shall
attempt to locate the business owner.
In this particular instance, the business
owner is indeed the CNC Puma. That business, as we
know, is the manager. The CEO is Amanda Lane, along
with Ryan Parent, along with Craig and -- I think
it's Christy Puma.
Finally as well, I wanted to point out, as
has been argued, there is only one CUP. I would also
like to offer a comment regarding an issue that is
part of the presentation by Zip Third, and that is
the reference when the administrative law judge is
talking about the fact about permit holders.
I am of a different view for the permit
holder, in this particular case I believe is indeed
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25 Puma Corp. They are the applicant on the CUP. They
are the applicant on each request for the
modification.
It is true that the CUP runs with the land
and is of interest of which the property owner has.
There was some discussion and statements that
Mr. Watson declared that they have a vested right.
Of course, a vested right is a legal determination.
A vested right occurs when you have a permit, and
then you have good -faith reliance on an issued
permit, and you have a substantial expenditure of
funds in reliance on that permit. That's from a
seminal case, Avco(phoenetic) v. City of San Diego.
There was absolutely no testimony during the
two days of hearing about any financial commitment
that had been put forth.
I'm not disputing it, and I don't think
that's necessarily a point that is relevant to the
revocation hearing, but it felt to me like it was a
legal issue that I wanted to bring forward as your
legal counsel here today about the issue of the scope
of the vested right.
We are not -- I'm not disputing that the
property owner has an interest in the CUP that runs
with the land.
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25 So I hope those are some clarifications that
are helpful to you, and if you have any questions,
I'm happy to answer them.
COMMISSIONER TURLEY-TREJO: So at this time
if any of my colleagues have questions of the
attorney, this would be the time to do that.
Any questions?
COMMISSIONER HAGEL: No, thanks.
COMMISSIONER TURLEY-TREJO: Okay. Thank you
so much for that -- those clarifications, and at this
time I'm going to close the public hearing, and this
is our time to discuss.
I would like to hear the discussion before
any kind of motions are made, and so I'm going to
start on my right this time with Commissioner Solis
with any -- anything you would like to add.
COMMISSIONER SOLIS: Based on the report, and
everything else that I've heard, to me it's clear
that the applicant did apply for a minor modification
to allow for live entertainment. And at the time
that the applicant comes before the City and requests
a modification, then all other conditions of approval
might be affected, and I think that's what happened
at this time.
The original Conditional Use Permit did not
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25 allow for live entertainment, and then the applicant requested, Oh, well, we want live entertainment,
which it would be a new Conditional Use Permit.
And upon that decision of the City granting
approval, then there was also modifications to the --
to the time of operation and also the sales of -- of
alcohol, which is very common practice.
So if the applicant comes and requests
something else, then maybe the hours of operation is
probably one of the conditions that gets changed as
part of the application process.
And I believe that the applicant is aware of
that because the applicant did apply for a
modification to the original CUP, and the City did
approve it and -- and moved forward with that.
So my understanding is that the applicant is
aware, just as -- just as he was aware to apply for a
modification to the existing CUP, I believe he's also
aware of the final conditions of approval, which
limited the hours of operation and also the -- excuse
me -- the hours of operation and the type of
entertainment that goes with that, which is very
specific.
And in the resolution or in the approval
letter, it's in bold, so it's very clear the hours of
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25 operation and also the entertainment that's allowed.
COMMISSIONER TURLEY-TREJO: Thank you.
Commissioner Hagel?
COMMISSIONER HAGEL: Okay. I just want to
kind of start the bigger picture here.
We -- we have a major problem in Old Town,
and I just want to state that no one is saying that
The Bank is the only problem and that's where all the
problems stem from.
So that was -- tended to be focused on here
in some of the -- some of the discussion, but -- and
I don't think we or anybody else should assume that
actions aren't being taken against other restaurants
or other organizations in Old Town that could be in
violation. We shouldn't assume anything. Those
things could -- could well be happening.
The creation of the metro team several years
ago was one of the responses to this growing problem,
and it's been brought up that there wasn't much
happening in the way of violations or police writing
tickets prior to whenever the date might have been,
2018.
But in the early -- I will say the earlier
dates, our issues had been growing, and continued to
grow, and it just says -- says to us that, you know,
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25 ten years ago, fifteen years ago, there wasn't a
problem, but there is a problem today.
The -- a year ago, this Commission took up a
entertainment license, and the purpose of that
entertainment license was to make it easier to deal
with this issue, to make it a lot less expensive for
the City and all of the parties that could be
involved in it to -- to solve a problem that could be
going on in a particular business, and that
entertainment license would be applicable to any
business that is making a change to their CUP or a
new business that's coming in town.
And -- and that would be -- I think a goal
would be to work towards having all of the businesses
be on that entertainment license that would be
renewed or apply for renewal each year, and if there
are problems, that renewal could be denied, and
without having to go through what has been, I guess,
a year's worth of, you know, courts and legal battles
and -- I'm not saying anything bad about attorneys,
but having to hire attorneys and all of that expense.
So that's, you know, the goal that we have as
the Commission, is to solve this problem and to work
towards reducing the cost and burden on everyone to
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25 be able to solve the problems step by step, business by business.
And that's all I will say for now. I will
save my other comments for later.
COMMISSIONER TURLEY-TREJO: You don't want to
finish up with your --
COMMISSIONER HAGEL: No. Go ahead.
COMMISSIONER TURLEY-TREJO: Okay. All right.
Commissioner Ruiz?
COMMISSIONER RUIZ: I didn't know which
direction you were going. Thank you.
I'll first start off by saying this is not
something that's taken lightly. You know, this is
1646 pages of, you know, information, a packet of
information that we've received and read.
I think for me, some of the things that stand
out is the citations I don't think were addressed the
way I would have liked to see them addressed on the
other side.
There was a lot of emphasis on the
unfortunate night of the murder, which kind of falls
into the disorderly house conversation, but we've got
34 citations, 109 civil penalties, that still have
not been addressed. They have not been paid. They
have not been challenged or appealed. They're still
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25 When it comes to modification to the CUP, I
stated in there, misinformation, misunderstanding,
however that must be interpreted, why was that never
then reapplied for?
Why was that never addressed moving forward?
You know, I appreciate the clarification by
Ms. Fox earlier because I had actually jotted down
when the -- Mr. Penman mentioned that, you know, the
2012 modification may not have been signed because
they didn't accept it, yet they accepted the
live -music portion of it. So you are kind of in turn
accepting it.
And then overall, I think, continuing since
this issue has started, it's been admitted that we're
operating outside of our business hours because it's
good for our business, but that's not really what's
been put in place.
We're doing live music when we applied for
background music, and I really wish that would have
been addressed a little bit more because to me that
just speaks to the character of the business that
we're looking at.
With regards to Zip Third, I don't -- you
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25 know, that's -- that's -- that's challenging. I
don't know how you would even begin to separate to
even go down that side of things.
I think it's been demonstrated that the lack
of communication has unfortunately led to, you know,
Mr. Solomon in the position that he's in, but overall
as I read through the packet and as I listened to all
of the cases being made today, those are the things
that still stand out to me that I didn't hear
anything to say, hey, yes, this is -- this is good.
Even the public comments of hearing about the
business, that's great, and I love to hear that. The
Bank has been around forever, but why not address how
do we -- let's fix this. I think the hours are
wrong. Let me apply for this and just fix that.
It's just been, for whatever reason, ignored
or forgotten about, and the fact that it's still
operating as what's best for their business, not with
what's down on the Condition of Approval in the
original CUP, it still remains a concern.
COMMISSIONER TURLEY-TREJO: Thank you,
Commissioner.
Commissioner Watts?
COMMISSIONER WATTS: Yeah. I spent Monday
reviewing the file, 1100 pages -- and I didn't review
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25 every one, don't get me wrong -- but the process
requires the Commission to review the transcript and
the hearing, and that's what I did, and today's
hearing was focused on that information.
I didn't hear anything contrary to what I saw
in my review. There my be some misinterpretation or
different interpretation of certain things, but not
really contesting the facts, and I know there has
been a lot of things said today that I'm not sure if
they're facts or not.
I know that it's been implied that one of the
staff members may have made something up, at least
that's how I took it.
If that's the case, it seems like there would
have been a burden to find some sort of proof to
justify that, and that wasn't done.
So the 2012 minor mod clearly had the
information in it that was communicated by the City.
The owner, or whoever was responsible at that time,
chose not to comply with the requirements that were
put on that business. A conscious decision, I think,
to ignore what was put there.
If the owner at that time or the person had a
beef with that, it seems like that should have been
brought forward by that person, and said, I don't
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25 agree with this, and that wasn't the case. They just kind of ignored it and went on with whatever that
person wanted to.
Now, that person could have passed that on to
the current owners and the current people there, and
I'm -- I don't know what went on between you and the
former operator, but it seems like there was a little
bit of responsibility to pass that on, and more than
just finding a copy of a document, and it was thrown
away because -- during a cleanup.
You know, I don't have a lot of experience
with private sector. I do have experience with
governmental sector, and it seems a lot different
than how things are viewed and reviewed and complied
with.
I can say that ever since this item has been
brought to our attention at the Commission, I was the
Chair at the time, the City has bent over backwards
to make sure that nothing unforward or untoward was
done regarding our role and our information.
We knew absolutely nothing, and I want to
compliment the City on following the rules and doing
that. It still remains, though, that there were --
there were, I don't know if there are continuing
but there were multiple, multiple violations of the
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25 requirements.
And rather than trying to correct it -- and
as I gather, the City tried to get compliance. They
always do. As far as I know, the City has always
bent over backwards to try to help the business
community as much as we can.
It appears to me there was a complete failure
to follow up on notice by the City that there were
problems and ignoring it. Just flat out ignoring it,
seems to me, over a hundred notices.
Letters were sent. Yeah, maybe they weren't
certified. Maybe they weren't required. I'm not
sure. But it seems like a lot of people knew a lot
about what was going on and it wasn't communicated or
wasn't dealt with. It was just ignored, hence we
have a hearing today and we are charged with -- with
our statutory roll in reviewing something such as a
revocation of a CUP.
So you can't -- nobody has brought up any
evidence to prove that or state that any of the
problems were made up. Clearly there was problems.
We -- I read the testimony by the police
officers that were -- responded to The Bank, and
having law enforcement experience myself, I certainly
can understand that -- that viewpoint from our police
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25 officers and their responsibility to do.
That being said, there's probably things that
the City can learn through this process, and if it
ever happens again, probably will do it better.
But the fact is there may have been -- I'm
not sure. There may have been an inappropriate
application or something to that nature, but the
administrative law judge made a finding that they --
they agreed with the action.
So I haven't heard anything really
overwhelming today that would change that view in my
And I appreciate the fact that we have a
business and we have an owner of that property where
the business is, and that kind of complicates it, but
the fact is it's been pointed out there's one CUP.
That's what we're dealing with, and that's what our
responsibility is in this hearing.
And I think that everybody has been given a
fair chance today and the opportunity to either
contest or review the material that was brought
forward, and I think it's been a fair hearing.
And I know that there has to be one way or
the other on this, and that's what we will be
prepared to do in due time.
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25 So those are my quick comments, Madam Chair.
COMMISSIONER TURLEY-TREJO: Thank you,
Commissioner Watts.
You had more you wanted to say?
COMMISSIONER HAGEL: (Unintelligible.)
COMMISSIONER TURLEY-TREJO: Well, this is our
time right now --
COMMISSIONER HAGEL: Okay. Yeah.
COMMISSIONER TURLEY-TREJO: Yeah. Go ahead.
COMMISSIONER HAGEL: So I think there's been
a lot of miscommunication on just about every party
that's -- that's involved in this, and I would agree
with Commissioner Watts that there's things that I
think the City needs to do differently, and, you
know, I will be happy to have that conversation
with -- with staff for the future.
But it is one CUP. You can't split it, and
we -- you know, it's pretty -- pretty black and white
as to what we have to do. We have to make a decision
to either revoke or not revoke, and as one of the
attorneys said, we should take everything into
consideration, the total picture.
You know, given that you're each given
45 minutes, you didn't have the opportunity to talk
about everything that was in the document.
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25 I did. I started Friday morning, and I have
done nothing but read that document, so I've read
every single page and I, you know, take this very,
very seriously.
You know, we're -- I think we're getting to a
stage that we're going to need to make a decision,
but I would -- I would also just state that there is
nothing that says that any business can't come and
apply for a license for entertainment, which also
takes into consideration alcohol.
And the reason why all of that is put
together is that when you add individually, none --
serving alcohol or music or loud music or shows,
hours of operation individually, they in themselves
don't create the problem. It's when you put them all
together that they can create a problem, and that's
what we have here.
We have a lot of businesses that are running
with all of those things put together, and I think
that tends to attract people who are not coming to
Old Town just for dinner, as we did ten years ago,
fifteen years ago.
I will say that I'm -- I've been here for
over 20 years now. I used to eat dinner at Old Town
all the time. I used to love Old Town, 24/7.
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25 I now have -- I love Old Town in a very
limited number of hours during the week. I rarely
come here for dinner, and when I do, I go to a
restaurant that is only serving dinner and maybe beer
or wine, or whatever. That's just my choice.
I have heard plenty of complaints from
residents over the last couple of years regarding Old
Town, that they don't feel safe going to Old Town.
And, you know, I've tried to encourage them that
there are -- you know, you can bring your kids during
the day. It's okay. But some people are just -- you
know, just so much bad press and so many bad things
have happened, and that they just don't want to go to
Old Town any longer.
And I think that's a shame, because, as one
of the speakers brought up, we have not only The
Bank, but we have many historic buildings here. We
have a historic downtown. It's a -- I love driving
through downtown because it reminds of me of where I
grew up, and, you know, a very historic area.
And unfortunately I feel that's been -- you
know, it's being taken from us, so we really want
that back. We want a place that -- to bring our
kids. I want to bring my grandkids down and be able
to walk -- walk in the evening and feel safe.
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25 So that's all I'm saying at this point. I
will let you go ahead.
COMMISSIONER TURLEY-TREJO: All right.
Any -- go ahead.
COMMISSIONER RUIZ: Thank you. Just looking
for some clarification as well.
So if this action of the revocation of the
CUP does not close The Bank Restaurant, correct, it
would revert to the original Type 41 under those
hours, no entertainment, no music, no liquor sales,
wine and beer?
COMMISSIONER TURLEY-TREJO: Is that correct,
Ms. Fox?
MS. FOX: I think I might need to ask
Mr. Watson to answer that for us.
I would say that the action here that will be
taken, we are suggesting be brought back for action
on a formal resolution. So you take action or bring
back the resolution to confirm that, and then there
will be a period of time that that action can be
appealed before it's final. So even the action that
this body takes will not be filed for a period of
time.
I think that we can expect there's going to
be an appeal to the City Council. I think Counsel
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25 Penman pretty much noted as much during his
presentation, but I haven't looked at the permitted
uses that would be at play for The Bank facility if,
indeed, the revocation goes forward.
COMMISSIONER TURLEY-TREJO: Okay. Well,
before Mr. Watson does that, unless anyone else has
any other discussion, I would like to say a few
things, and then have him --
COMMISSIONER RUIZ: Yeah. That's great. And
for me it speaks to the comments on livelihood and
business.
We're not charged or looking to take a
business and close it and remove it from the city. I
just -- I want to be clear on what this action will
result in if it does move forward. Thank you.
COMMISSIONER TURLEY-TREJO: Okay.
Well, maybe go ahead right now.
MR. WATSON: Madam Chair and members of the
Commission, Commissioner Ruiz, yes. So if the CUP
was revoked, it would remove the ability for The Bank
to serve distills spirits under a Type 47, and it
would remove all the conditions that are associated
with that CUP approval.
The -- their ability to operate as a
restaurant is a permitted use. It doesn't require a
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25 CUP, so they could immediately start operating as a
restaurant, and they would have the ability to serve
beer and wine by right, so without a special
Conditional Use Permit.
They would still need to, of course, get
whatever permitting they needed from ABC to do that,
but under our code, they could operate as a
restaurant, by right, with beer and wine.
COMMISSIONER RUIZ: May I ask a follow-up
question?
So if they reverted to that restaurant, would
they have the ability in the future to reply for a
Type 47?
MR. WATSON: Yes. Theoretically they could
come back and reapply at some point.
COMMISSIONER RUIZ: Okay. Thank you.
COMMISSIONER TURLEY-TREJO: Okay. Any other
questions for Mr. Watson? Okay.
Okay. All right. Well, first of all I want
to commend my fellow Commissioners. This is kind of
visible.
This is what we read and went through, and
personally I did, and we take it very seriously, what
we've done today.
And so I think someone said -- I think it was
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25 Mr. Penman said we're not a rubber-stamp, and we're
not. So I want to be clear about that, that we have
done our due diligence here as a Commission, and, you
know, this is not something that has ever come -- has
been one of our tasks, but we have risen to that
occasion.
So I appreciate each of my fellow
Commissioners in doing their due diligence in this
�i�
So as I went through it -- and really, I
agree with everything that has been said. I'm not
going to say much, but just -- you know, when I first
read it, it was, like, wow, there's this, like,
nine-year gap, right, of where there haven't been any
citations or things happening, and why would the City
not know, and it -- you know, it came to my attention
that the police are the ones who let the City know
because there were problems.
So if there hadn't been problems, then I
that question for me that that was why the CUP was
checked at that time.
As far as the failure to sign the Condition
of Approval, our attorney cleared that up for me
that, you know, you accept the benefit and of the
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25 They were obviously accepting the benefit of
having the live entertainment, but not the burden of
the hours being changed, so that was pretty clear to
me.
And Mr. Puma, or the owner at the time, never
appealed to change these conditions of approval, so
that was pretty telling that there is one CUP and
that this owner is responsible to comply, and that
So you know, I have watched personally the
City bend over backwards in this situation to work
with The Bank, and as we just discussed here, you
know, the business isn't over. They have a business,
even with this revocation, and I would encourage them
to work with the City and be a good player.
Because for me, honestly, Old Town has been a
concern of mine from day one being on this
Commission, and -- but we respect and appreciate
those restaurants that are good players and that
comply with their conditions of approval, and that's
really what we're looking at today.
And so that's really all I have to say, and I
appreciate everyone involved who has taken time to be
here today and bring their presentations to us, and I
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25 appreciate our Counsel.
And at this time, if there -- so the motion
at this time, I'm going to have our Counsel kind of
help us with that, what that motion would be, if
someone would like to give that motion.
MS. FOX: Was that a question to me, Madam
Chair?
COMMISSIONER TURLEY-TREJO: Yeah.
MS. FOX: So there needs to be a motion
either confirming or modifying or rejecting the
decision of the administrative law judge to revoke
the operation of The Bank and to direct that a
resolution to be brought back confirming whatever
that decision is.
COMMISSIONER TURLEY-TREJO: Okay. All right.
So with that, do we have a motion?
COMMISSIONER HAGEL: Okay. Well, I believe
at this point perhaps The Bank is making -- making
efforts to -- to make changes, but I believe that
they need to earn that, and I would make a motion
that we confirm the revocation of the CUP at this
time.
COMMISSIONER TURLEY-TREJO: Okay. Is that
motion good, Counsel? Does that work?
MS. FOX: That sounds good, and maybe we
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25 could add to it and bring back a resolution, a
written resolution confirming same.
COMMISSIONER WATTS: I will second that
motion.
COMMISSIONER TURLEY-TREJO: Why don't you add
that to it, and bring back a resolution to --
COMMISSIONER HAGEL: And bring back a
resolution to the Commission for approvals.
COMMISSIONER WATTS: And I will second that.
COMMISSIONER TURLEY-TREJO: Okay. We have a
first, Commissioner Hagel, and a second by
Commissioner Watts.
Okay. All in favor?
COMMISSIONER WATTS: Aye.
COMMISSIONER RUIZ: Aye.
COMMISSIONER TURLEY-TREJO: Aye.
COMMISSIONER HAGEL: Aye.
COMMISSIONER SOLIS: Aye.
COMMISSIONER TURLEY-TREJO: And any opposed?
Okay. Motion carried.
All right. So we will adjourn until our next
regular scheduled meeting on March 1st at 6:00 p.m.
here, and that is where we will receive that
resolution; correct, Counsel?
MS. FOX: Correct.
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25 COMMISSIONER TURLEY-TREJO: Okay. Thank you
very much. Thank you to all of you who have attended
today. Thank you.
(The meeting was adjourned at 1:55 p.m.)
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PA
23 24
25 HEARING REPORTER'S CERTIFICATE
I, Amanda Karmann, Hearing Reporter in and for
the State of California, do hereby certify:
That the foregoing transcript of proceedings was
taken before me at the time and place set forth, that the testimony and proceedings were reported stenographically by me and later transcribed by computer -aided
transcription under my direction and supervision, that
the foregoing is a true record of the testimony and
proceedings taken at that time.
I further certify that I am in no way interested
in the outcome of said action.
I have hereunto subscribed my name this 7th day
of March, 2023.
1 1 ' �
r!I- W-1
AMANDA KARMANN
■ i�.Z I�'►
PC RESOLUTION NO.2023-04
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF TEMECULA CONFIRMING THE DECISION
OF ADMINISTRATIVE LAW JUDGE NYE-PERKINS TO
REVOKE THE CONDITIONAL USE PERMIT ISSUED TO
THE BANK, LOCATED AT 28645 OLD TOWN FRONT
STREET
Section 1. The Planning Commission of the City of Temecula does hereby find, determine and declare that:
A. In November 2007, Craig Puma from CNC Puma Corporation submitted an application to the City for a Minor Conditional Use Permit on behalf of the Bank of Mexican Food Restaurant ("the Bank") located at 28645 Old Town Front Street in Temecula ("the Property").
Craig Puma from CNC Puma Corporation was the applicant. The application including the consent of the property owner Maureen Licata aka Maureen Meardon.
B. On January 3, 2008, the Planning Director approved Planning Application No.
PA07-0314, a Minor Conditional Use Permit to upgrade a Type 41 ABC License (On -sale beer and wine -eating place) to a Type 47 ABC License (on -sale general) to authorize the sale of beer, wine and distilled spirits at the Bank.
C. On October 9, 2008, Craig Puma from CNC Puma Corporation submitted an application to the City for a Minor Modification Application on behalf of the Bank of Mexican Food Restaurant ("the Bank") located at 28645 Old Town Front Street in Temecula ("the Property"). Craig Puma from CNC Puma Corporation was the applicant. The application including the consent of the property owner Maureen Licata.
D. On October 9, 2008, the Planning Department approved Planning Application No.
PA08-0236, a Minor Modification to Minor Conditional Use Permit (PA07-0314) to extend the hours of operation for the sale, service and consumption of alcohol at the Bank.
E. On February 27, 2012, Craig Puma from CNC Puma Corporation submitted an application to the City for a Minor Modification on behalf of the Bank of Mexican Food Restaurant ("the Bank") located at 28645 Old Town Front Street in Temecula ("the Property"). Craig Puma from CNC Puma Corporation was the applicant. The application including the consent of the property owner Maureen Licata.
F. On February 28, 2012, the Planning Department approved Planning Application No. PA12-0041, a Minor Modification to Minor Conditional Use Permit (PA07-0314) to allow for dinner entertainment for the purpose of providing background music at the Bank. The February 28, 2012 approval contained additional conditions which called out certain hours of operation for the Bank.
G. The Minor Conditional Use Permit (PA07-0314), as modified on October 9, 2008 (PA08-0236) and on February 28, 2012 (PA12-0041) is a single CUP and is referred to collectively hereinafter as "the Bank CUP".
H. Beginning in March 2021, the City's Code Enforcement Division issued 109 Civil Penalty Notice and Orders to the CNC Puma Corporation due to violations of the Bank CUP including for violating approved operational hours beyond 11:00 p.m.; having excessive noise levels including with outside speakers over allowed noise levels; and failing to have a CUP for amplified music and live entertainment.
I. On May 19, 2022, the Planning Director sent a notice to: (1) CNC Puma Corporation care of Brand Landon as the Agent for Service of Process; Craig Puma, the Bank; and Amanda Moore, who is an officer of CNC Puma Corporation and manager of the Bank, advising that he was recommending that the Bank CUP be revoked. The City subsequently sent a notice to Zip Third Investments, LLC, the entity who had become the successor in interest of the Property from the estate of Maureen Licata and advised that the Planning Director was recommending that the CUP be revoked.
J. Consistent with Temecula Municipal Code § 17.03.085, the revocation proceeding was held at a noticed public hearing before the State Office of Administrative Hearings with Administrative Law Judge Nye -Perkins presiding on August 31, 2022 and September 1, 2022.
K. On or about October 19, 2022, Judge Nye -Perkins issued an order revoking the CUP. A copy of the Order is attached hereto as Exhibit "A" as if set forth in full herein, L. On February 21, 2023, the Planning Commission held a duly noticed public hearing as prescribed by law, at which time the City staff, representatives from CNC Puma, Zip Third Investments, LLC and interested persons had an opportunity to and did comment on whether the Planning Commission should confirm, modify or overrule the Order. CNC Puma was represented by legal counsel James Penman of Milligan, Beswick, Levine & Knox, LLP; Zip Third Investments was represented by Tyler Sherman of Cole Huber LLP and Rick Edwards of Rick Edwards, Inc.
M. All legal preconditions to the adoption of the Resolution have occurred.
Section 2. Approval of Administrative Law Judge Ruling
A. The Planning Commission of the City of Temecula hereby adopts the findings of fact and conclusions of law issued by Judge Nye -Perkins in the October 19, 2022 decision revoking the CUP, which is attached hereto as Exhibit "A" as if set forth in full subject to the following modifications finding that the permit holder of The Bank CUP is CNC Puma Corporation and also finding that the property owner is Zip Third Investments who has property interest in the BANK CUP which runs with the land.
B. Pursuant to Temecula Municipal Code § 17.03.085, the Planning Commission hereby confirms the decision of Administrative Law Judge Nye -Perkins revoking the Bank CUP.
PASSED, APPROVED AND ADOPTED by the City of Temecula Planning Commission this 1" day of March, 2023.
Lanae Turleyqrejo, Chair
ATTEST:
Denise Jacobo, Secretary
[SEAL]
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )ss
CITY OF TEMECULA )
I, Denise Jacobo, Secretary of the Temecula Planning Commission, do hereby certify that the foregoing PC Resolution No. 2023-04 was duly and regularly adopted by the Planning Commission of the City of Temecula at a regular meeting thereof held on the 1" day of March, 2023, by the following vote:
AYES: 5 PLANNING COMMISSIONERS: Hagel, Ruiz, Solis, Turley-Trejo, Watts NOES: 0 PLANNING COMMISSIONERS: None
ABSTAIN: 0 PLANNING COMMISSIONERS: None
ABSENT: 0 PLANNING COMMISSIONERS: None
Denise Jacobo, Secretary
MILLIGAN,
BESWICK,
LEVINE* &
KNOX LLP
ATTORNEYS AT LAW
C. PATRICK MILLIGAN
RICHARD R. BESWICK (1941-2006)
STEPHEN P. LEVINE
JAMES L. KNOX
TELEPHONE
1 447 FORD ST, SUITE 201 (909) 798-3300
REDLANDS, CALIFORNIA 92374 (909) 888-5741
FACSIMILE
(909) 798-3301
MBLKL, WFIRM.COM
CERTIFIED SPECIALIST- CRIMINAL LAW
THE STATE BAR OF CALIFORNIA BOARD OF LEGAL SPECIALIZATION Attacbrn.ent "C"
March 9, 2023
The Mayor and City Council
C/O City Clerk Department
City of Temecula
41000 Main Street
Temecula, CA 92590
Re: Revocation of CUP PA 07-0314
J. TIMOTHY HEGNESS,.oFcouNsEL
JAMES F. PENMAN, oF-couNsEL
ELIZABETH LEON GONZALEZ, oFcouNSEL
Dear Honorable Mayor Schwank and Honorable City Council Members, REce1vLz.®
MAR 102023
CITY CLErgfCs OFFICE
We are asking the Mayor and City Council to overturn the March 1, 2023 decision of the City of Temecula Planning Commission ("the Planning Commission) which confirmed the decision of Administrative Law Judge Nye -Perkins revoking the Conditional Use Permit of "The Bank Restaurant of Mexican Food".
The grounds for this Appeal and the specification of errors in the decision are as follows:
1) The Administrative Law Judge, and the Planning Commission declined to consider the modification of hours as detailed in the October 15, 2008 Minor Modification of The Bank's CUP, PA 08-03236 (City's Exhibit number 7, Bates page beginning at page 36, Condition #14) which permitted the Bank to remain open until 2:00 a.m., instead of the initial January 3, 2008 PA 07-0314 (City's Exhibit 4, Bates number 12) which required closure no later than 11:00 p.m. on Fridays, Saturdays, and holidays.
It was an error for that to have occurred.
2) The Administrative Law Judge, and the Planning Commission declined to consider and to give the appropriate weight to the modification of hours as detailed in the October 15, 2008 Minor Modification of The Bank's CUP, PA 08-03236 (City's Exhibit number 7, Bates page beginning at page 36, Condition #14) which permitted the Bank to remain
open until 2:00 a.m., instead of the initial January 3, 2008 PA 07-0314 (City's Exhibit 4, Bates number which required closure no later than 11:00 p.m. on Fridays, Saturdays, and holidays in making their decisions.
It was an error for that to have occurred.
3) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight the fact that the applicant did not request a change of hours in the Minor Modification of the CUP granted October 15, 2008. That modification cut back the closing hours from 2:00 a.m. to 11:00 p.m.
It was an error for that to have occurred.
4) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the failure of City Planner Stuart Fisk to say he was directed to change the closing hours by his supervisor prior to his testimony before the ALJ, his numerous opportunities to have done so, and the fact that no written documentation of that change having been discussed with the applicant has been offered into evidence to date. The evidence to the contrary, is that the closing time change with the Applicant was never discussed with him by City staff. Finally, Fisk even admits, "the COA (Conditions of Approval) were from the 2007 CUP Application" (Exhibit H, page 3, D190).
It was an error for that to have occurred, and it was an error to admit the so called rebuttal testimony of Stuart Fisk to this effect because his testimony was offered as rebuttal testimony instead of testimony pursuant to the City's case in chief, the testimony constituted hearsay, and because the other evidence, including testimony of other witnesses and documentary evidence contradicted Mr. Fisk's testimony.
Applicants/Appellants attorney made a timely objection to the admission of Mr. Fisk's testimony and moved to exclude that testimony. That objection and motion was either overruled and not granted, respectively, or not ruled on at all. 5) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the fact that the City of Temecula Planning Department, lost or misplaced the October 15, 2008 Minor Modification of The Bank's CUP, PA 08-03236 (City's Exhibit number 7, Bates page beginning at page 36, Condition #14) in making their decisions.
It was an error for that to have occurred.
6) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the Applicants' assertion and evidence submitted that the Planning staff cut and pasted the closing hours, and other information, from the original CUP, PA 07-0314, instead of the later closing hours granted in the Minor Modification approved October 15, 2008, PA 08-03236 CUP Modification in making 2 their decisions.
7)The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the emails introduced by Applicants/appellants between City staffers Luke Watson and Stuart Fisk, and to the emails between Luke Watson and Planner Robidou.
It was an error for that to have occurred.
8)The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to any of the testimony ofAmanda Lane on numerous points, including but not limited to her conversation(s) with Planning staff member Jaime Cardenas.
Please read Ms. Lane's entire testimony as it appears in the Transcript, Volume II of the Hearing before the Administrative Law Judge.
It was an error for that to have occurred.
9) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the testimony of Craig Puma. Please read Mr.
Puma's entire testimony as it appears in Transcript, Volume II of the Hearing before the Administrative Law Judge.
It was an error for that to have occurred.
10) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the several incorrect statements of Riverside County Sheriff s Sergeant Joshua Hephner. Among the incorrect statements Sgt. Hephner testified to are the location of two homicides at the Bank and as both being connected to the Bank; incorrect testimony about the security guards at the Bank; incorrect testimony about calls for service and incidents at the Bank; and each one of Sgt. Hephner's incorrect statements as they appear in the record, as pointed out to the ALJ and to the Planning Commission, statements which appear throughout the record. Please read Sgt.
Hephner's entire testimony as it appears in Transcript, Volume I of the Hearing before the Administrative Law Judge.
It was an error for that to have occurred.
8) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the fact the City of Temecula, after losing or misplacing the October 15, 2008 Minor Modification of hours (PA 08-03236), did not enforce the purported closing time of The Bank following the February 28, 2012 enactment of the CUP Minor Modification to allow live entertainment which mistakenly changed the Bank's closing hours from 2:00 a.m. to 11:00 p.m. for eight years (from February 2012 to February 2021).
It was an error for that to have occurred.
9) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the fact that calls for service incorrectly listed numerous calls which were attributed to the Bank but which were in fact, not related to the Bank. -
It was an error for that to have occurred.
10) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the fact that the evidence demonstrated that other restaurants in the same area, including within a block of the Bank, had more calls for service than did the Bank.
It was an error for that to have occurred.
11) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the fact that one homicide which was attributed to the Bank but occurred about '/z block away from the Bank and those involved had not been in the Bank prior to the shooting. Nonetheless, that homicide was cited as a reason for the Planning Department, and the ALJ to recommend the revocation of the Bank's CUP.
It was an error for that to have occurred.
12) The Administrative Law Judge, and the Planning Commission, declined to consider and/or to give the proper weight to the testimony of two City officials (Luke Watson and Tom Cole) before the ALJ that the Bank had come into compliance with the City's noise ordinance and as a result, no citations for Noise Ordinance violations were issued to the Bank from July 3, 2021 on. That is a period of eight (8) months before Planning recommended revocation of the Bank's CUP and based that revocation recommendation partially on the Bank's non-compliance with the City's noise ordinance.
It was an error for that to have occurred.
16) The revocation of the CUP by the Administrative Law Judge and by the Planning Commission is based on a great deal of incorrect information, information which the evidence clearly proves was false and/or misleading and the grounds for appeal include each one of those incorrect pieces of information as detailed throughout the record of this revocation process.
It was an error for that to have occurred.
17) The City of Temecula, the Administrative Law Judge, and the Planning Commission, denied Applicants/Appellants their rights of due process throughout the investigation, in issuing the citations, and in the Administrative Civil Penalty impositions, along with violating the Fifth Amendment to the Constitution of the United States as they pertain to the Applicants/Appellants throughout the prosecution and the process of this revocation 4 of the Bank's CUP as shown by the entire record herein.
It was an error for that to have occurred.
18) The record, in its entirety, lacks sufficient credible and truthful information upon which a CUP revocation, which is a deprivation of property, may be based pursuant to the Fifth Amendment to Constitution of the United States.
That is an error.
19) We also specifically appeal the decision of the Planning Commission refusing to permit the showing of the video of the shooting incident at the Bank as evidence to be considered by the Planning Commission in that the video shows there was no disturbance prior to the shooting as Sgt. Hephner testified and as other city officials testified was a factor in deciding to revoke the CUP.
It was an error to refuse our attempt to introduced that video. 20) We also specifically appeal the decision of the Planning to not allow a continuance until such time as the video described in the previous paragraph may be admitted into evidence before the Planning Commission without the objection of the District Attorney, in other words, once the pending criminal cases have been resolved.
It was an error that the continuance requested was not granted. 21) We also specifically appeal the decision of the Planning Commission which declined to give additional time for the Applicants/Appellants to locate Mr. Patrick Richardson, Director of Community Development for the City of Temecula at the time PA 08-03236 was approved (October 15, 2008). Mr. Richardson's testimony is necessary to refute the testimony of City Planner Stuart Fisk before the ALJ, in which Mr. Fisk testified that Mr.
Richardson directed him to change the closing time on the Bank's CUP from 2:00 a.m. to 11:00 P.M. .
It was an error not to grant additional time to permit Mr. Richardson to be located.
THEREFORE: Applicant/Appellant specifically requests the Mayor and City Council of the City of Temecula to:
1) overturn the decision of Administrative Law Judge Nye -Perkins in this matter, and 2) reinstate CUP Modification Number PA 08-03236, with daily closing hours at 2:00 a.m. as the current CUP for the Bank Restaurant of Mexican Food, effective forthwith.
Because of our uncertainty regarding the applicability of the use of the City of Temecula Planning Division's form entitled, "Appeal Application (Public Hearing)" we are employing this letter as Attachment "C" to the Appeal to the Temecula City Council (using the above -referenced form), which is filed by the owners of The Bank Restaurant of Mexican Food, located at 28645 5 Old Town Front Street, Temecula, CA 92590. This letter is attached as Exhibit "C" to the Appeal form appealing the above -referenced decision and is a part thereof as if fully stated in this letter and in the above -referenced form again.
Alternatively, this letter may be used as the formal Appeal to the City Council as provided in the Temecula, California Municipal Code, Title 17 Zoning, Chapter 17.03 Administration of zoning, Section 17.03.085 ... A. Revocation 8. In such case the two Appeal forms referenced above are attached hereto as Attachments "A" and `B" respectively.
Respectfully submitted,
Milligan Beswick Levine & Knox, LLP
Attorneys for Applicants/Appellants
The Bank Restaurant of Mexican Food
By:
James F. Penman
Of Counsel
Attachments: Two (2), labeled Attachments "A" and `B"
6 CITY OF TEMECULATT�C1�1�1�NT
PLANNING DIVISION
roxo
41000 Main Street 951-694-6400
Temecula, CA 92590 TemeculaCA.gov/plaaning_
APPEAL
SECTION A APPEAL APPLICATION (PUBLIC HEARING)
NOTE: DO NOT USE THIS FORM FOR MASSAGE APPEALS. VISIT TEMECULACA.GOV/MASSAGE
PROJECT INFORMATION
Original Planning Application Number(s)
PA 07-0314
Appealing the Decision of:
D Director of Community Development ❑ Director's Hearing X Planning Commission Date of Decision
March 1, 2023
brietly specify what action or decision is being appealed Confirmation of the decision n of Administrative Law Jude Nve.-Pe-rkin_s-_,,,,,_........ __. _......_..........g
revo ing The Bank CUP See Attachment 6 attached hereto and incorporated herein by reference)
ADDITIONAL PROJECT INFORMATION
Assessor's Parcel No(s)
922036011
Legal Description (Tract, Lot No.)
Town of Temecula, Lot 11
Street Address(es)
28645 Old Town Front St., Temecula CA 92590
General Location
Front/Main Street
APPLICANT/REPRESENTATIVE/OWNER INFORMATION
Company
The Bank of Mexican Food
First Name 1Middle Initial
Amanda I.
Street Address
28645 Old Town Front St.
City 'State
Temecula CA
E-mail
[email protected]
Last
Lane
Zip Phone
92590 (951) 378-0980
I certify that all filing requirements have been satisfied for my application. I further understand that an incomplete application cannot be accepted for processing.
Applicant's Signature
3 : ; 4� �,ov-Le.
PLANNING APP. NO.
FOR STAFF USE
DATE STAMP
REC'D BY
PL-52 R.102/14/23 R:WPPLICATIONS\2022VAPPEAL PL 52.DOCX PG. 3/6
CITY OF TEMECULATTC���IE l 15
PLANNING DIVISION
41000 Main Street 951-694-6400
Temecula, CA 92590 TemeculaCA.gov/planning
APPEAL
SECTION A APPEAL APPLICATION (PUBLIC HEARING)
NOTE: DO NOT USE THIS FORM FOR MASSAGE APPEALS. VISIT TEMECULACA.GOV/MASSAGE
PROJECT INFORMATION
Original Planning Application Number(s)
PA 07-0314
Appealing the Decision of: Date of Decision
❑ Director of Community Development ❑ Director's Hearing -K Planning Commission March 1, 2023 Briefly specify what action or decision is being appealed Confirmation of the decision of Administrative Law Judge Nye -Perkins revok-irig..... The- Bank Cup ��ee Af£acT�merit C attached hereto and incorporated herein by reference).
ADDITIONAL PROJECT INFORMATION
Assessor's Parcel No(s)
922036011
Legal Description (Tract, Lot No.)
Town of Temecula, Lot 11
Street Address(es)
28645 Old Town Front St., Temecula, CA 92590
General Location
Front/Main Street
APPLICANT/REPRESENTATIVE/OWNER INFORMATION
Company
The Bank of Mexican Food
rlrSi Name
Amanda
01reet rruuress
28645 Old Town
City
Temecula
Middle Initial Last
Lane
James F. Penman
Front St. Milligan, Beswick, Levine & Knox, LLP
;state Zip Phone 447 Redlands, CA*CA* 62374 Ste.201
CA 92590
t-man
[email protected]
I certity that all filing requirements have been satisfied for my application. I further understand that an incomplete application capnot be accep ed for processing.
Applicant's Signature
PLANNING APP. NO.
James F. Penman Attorney for Applicant/
FOR STAFFUSE Appellant
DATE STAMP I REC'D BY
PL-52 R-0211V23 R:WPPLICATIONS\202ZAPPEAL_PL_52DOCX PG. 3/6
CITY OF TEMECULA
PLANNING DIVISION APPEAL
41000 Main Street 951-694-6400
Temecula, CA 92590 TemeculaCA.gov/planning
SECTION A i APPEAL APPLICATION (PUBLIC HEARING)
NOTE: DO NOT USE THIS FORM FOR MASSAGE APPEALS. VISIT TEMECULACA.GOV/MASSAGE
PROJECT INFORMATION
Original Planning Application Number(s)
PA07-0314
Appealing the Decision of: Qate of Decision
❑ Director of Community Development ❑ Director's Hearing g Planning Commission 3/1/2023 Briefly specify what action or decision is being appealed Planning Commission Resolution No. 2023-04 revoking conditional use permit PA07-0314. ..................................................................................................................................................................... .................. ...... ....................... .... .............
ADDITIONAL PROJECT INFORMATION
Assessor's Parcel No(s)
2022-922036011
Legal Description (Tract, Lot No.)
Lots 10 and 11 BLK 27 MB 015/726
Street Address(es)
28645 Old Town Front Street Temecula, CA 92590
General Location
Old Town Temecula
APPLICANT/REPRESENTATIVE/OWNER INFORMATION
Company (Owner)
Zip Third Investments, LLC
First Name Middle Initial Last
Rick Edwards (Lawyer For Zip Third)
Street Address
5021 Verdugo Way, Suite 105-408
City State
Camarillo CA
E-mail
[email protected]
ip Phone
93012 310-277-6464, ext. 382
I certify that all filing requirements have been satisfied for my application. I further understand that an incomplete application cannot be accepted for processing.
Applicant's Signature
PLANNING APP. NO.
FOR STAFF USE
DATE STAMP
RECEIVED
MAR 10 2U23
CITY CLERK'S OFFICE
REC'D BY
PL-52 Re .2/14123 R.WPPLICATION512022WPPEAL_PL_52.DOCX PG. 3/6
SECTION B
DESCRIPTION OF ACTION BEING APPEALED
Specify if appealing an action of the Planning Director or the Planning Commission. Include the date of the decision to be appealed. Include the specific action that is being appealed, complete with original Planning Application Number(s), common name of project, general location of project, and any other supporting information. Please see attachment.
SECTION C I WRITTEN DESCRIPTION TO SUPPORT APPEAL
Include reason or justification to support the appeal. The Appellant must submit with this appeal each issue that the appellant alleges was wrongly determined together with every agreement and a copy of every item of evidence. Please see attachment.
SECTION D
EVIDENCE TO SUPPORT POSITION
The burden of proof to cause the appeal action to overturn the prior decision rests with the Appellant. If the Appeal is to the City Council, only those issues that were presented during previous hearings may be addressed. New evidence or issues may or may not be considered by the Council. Please see attachment.
SECTION E I_
Include a statement concerning the retie
Please see attachment.
DESIRED ACTION TO BE TAKEN
or action sought from the Planning Commission or
Please see attachment for Sections B-E.
PL-52 Rev.02/14/23 RIAPPLICATIONS12022WPPEAL_PL_52.DOCX PG. 4/6
ATTACHMENT TO APPEAL APPLICATION
SECTION B- DESCRIPTION OF ACTION BEING APPEALED
Planning Commission Resolution No. 2023-04 dated March 1, 2023, which states that it "confirms the decision of Administrative Law Judge Nye -Perkins revoking the Bank CUP." (Resolution, page 3.)
SECTION C- WRITTEN DESCRIPTION TO SUPPORT APPEAL
The "reason or justification to support the appeal" consists of the following:
1. Absence of Due Process and Failure to Comply with the City's Municipal Code. a. Inadequate notice to property owner of administrative citations and civil penalty letters.
City Code Section 1.21.050 requires the following for effective service of citations:
"B.[T]he enforcement official shall attempt to locate the business owner and issue the business owner an administrative citation ... a copy of the administrative citation also shall be mailed to that address to the attention of the business owner or a responsible person. The mailing shall be sent by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail." C. The enforcement official shall attempt to obtain on the administrative citation the signature of the responsible person ..."
Enforcement official Tom Cole testified that citations were sent to Zip Third, of which Norman Solomon is the principal, only by regular mail:
"A That is correct. I mailed them regular mail to Mr. Solomon and Ms. Moore. And to the agent or (sic) service [The Bank's agent] and I mailed them certified and regular mail." (Transcript Day 1, 183:18-20. )
These citations were sent during Covid. Mr. Solomon, age 76, was sheltering at home. His property manager did not notify him of regular mail. Certified mail would have been brought to his attention. As a permit holder, Zip Third was entitled to service which complied with the City Code. That service was not made.
b. The Planning Commission's ignored the legal effect of the following: The City represented to the Administrative Law Judge, and the parties agreed, that there were two permit holders, the on -site business (The Bank restaurant) and the property owner:
1 Sol/Temecula.23/Appeal Application Attachment
"ADMINISTRATIVE LAW JUDGE NYE-PERKINS: Am I hearing from you that there are two permit holders here, both the property owner and the restaurant operator? MS. PETRUSIS: Yes." (Transcript, 12:6-8.)
The Judge concluded this colloquy with:
"Okay. I have the parties' positions on that very critical issue. I believe from my personal review of this that the permit holder is both the property owner and The Bank." (Bolding added.) (Hearing Transcript Day 1,16:21-24.)
Notwithstanding the City's agreement that there were two permit holders, the Planning Commission resolution, p. 2, Section 2 A, states:
"A. The Planning Commission... hereby adopts the findings of fact and conclusions of law issued by Judge Nye -Perkins... subject to the following modifications (sic) finding that the permit holder of The Bank CUP is CNC Puma Corporation and also finding that the property owner is Zip Third Investments who has (sic) property interest in the BANK CUP which runs with the land." (Bolding added.) (PC RESOLUTION NO. 2023-04, p.2.)
The City is free to adopt or reject the Administrative Law Judge's ruling. But it is not due process for the City -- after the hearing is over and the Judge has ruled -- to "modify" its own representation and agreement that "there are two permit holders here, both the property owner and the restaurant operator". No Court would allow that. "An oral stipulation made in open court constitutes not only an agreement between the parties, but also an agreement between them and the court. Thus, the court is bound to enforce such stipulations 'for the protection of its own honor and dignity.' [Linder v. Cooley (1963) 216 CA2d 390, 395, 31 CR 271, 274; Lyons v. Lyons (1961)190 CA2d 788, 790, 12 CR 349, 350]." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group rev. June 2022) ¶ 8:954.)
The City should honor its representation and agreement. The City is not above the law.
The property owner, Zip Third, does not contest the grounds to revoke the CUP as to one permit holder, the tenant, CNC Puma. More generally, the property owner, which currently owns the entire block where CNC's restaurant is situated, and whose principal, Mr. Solomon, owns four other Temecula properties, supports all reasonable efforts to better Old Town. It is a pathetic situation when, as here, a planning commissioner wisely recommends coming to Old Town only during daylight.
But the City's overruling the Administrative Law Judge for agreeing with the City that there are two permit holders is not due process. It suggests an agenda to revoke the CUP as to both Sol/Temecula.23/Appeal Application Attachment
permit holders by any means necessary. That throws the baby out with the bathwater. And it suggests recognition that the grounds to revoke as to the CUP -holding property owner are weak.
Zip Third does not believe that the City has a malicious intention. But the consequences of the City's unfair (and illegal) position reversal are inconsistent with the City's representations that it is, as Mr. Watson testified, "business friendly" and talks to the property and business owners before issuing any citations:
"You testified that the code enforcement situation is the City tries to be business friendly and that the City does not want to use a heavy hand as to owners, but instead to work collaboratively. I think I quoted that pretty accurately. Based on that, did you ever attempt to contact Mr. Solomon or anyone at Zip Third by hone for example?
A No." (Transcript Day 1, 137:18-25.)
"My question is you indicated that code enforcement reaches out to owners to act collaboratively. Did you reach out to this owner to act collaboratively, meaning a phone call or something that isn't an enforcement letter? That is my definition for purposes of this question? A No, we didn't." (Transcript Day 1, 138:3-9.)
The tenant received full compliance with the City Code and standard practice:
consultations before citations, certified mail service of citations, and more than a year's time to comply. In contrast, the property owner learned of the violations, and of the City's intention to revoke the CUP, in a 5:30 p.m. phone call from the City's lawyer on Friday, July 1.
Notifying the property owner earlier would have produced prompt action. The property owner took prompt action after the July 1 phone call. That prompt action resulted in dismissal -- by property owner's motion and resultant court order -- of tenant's bankruptcy petition (dismissed before the revocation hearing commenced on August 31), and initiation of unlawful detainer proceedings. After systemic delays, those proceedings are set for trial March 30 in Riverside Superior Court.
Additional due process "justification" of the appeal is:
c. The City's failure to comply with City Code section 1.21.050, stating that property owners are not responsible for tenants' violations of a CUP.
2. Lack of the Required Clear and Convincing Evidence to Support Revocation.
The property owner violated nothing. There has been no assertion that the property owner caused or contributed to a single violation. When informed of violations the property owner acted swiftly towards stopping them.
Sol/Temecula.23/Appeal Application Attachment
No one has suggested that the property owner or its principal is irresponsible, or crazy, or desires Old Town's environment to deter business. The property owner owns the entire block, which is prime Old Town property. Its principal has owned 9 Temecula properties and supports the City's growth and prosperity.
The property owner aspires to remain a CUP holder, and to replace the tenant with a tenant who honors the CUP's conditions.
SECTION D- EVIDENCE TO SUPPORT POSITION
The entire record that was before the Planning Commission; Planning Commission Resolution No. 2023-04;
Transcript of Planning Commission hearing held February 15, 2023.
SECTION E- DESIRED ACTION TO BE TAKEN
Zip Third Investments, LLC, requests that City Council decide not to revoke the CUP as to permit holder Zip Third, and, accordingly, not to confirm or adopt the decision of the Administrative Law Judge and not to confirm or adopt Planning Commission Resolution No. 2023-04 to the extent that decision to revoke and that resolution to revoke apply to Zip Third. 4 Sol/Temecula.23/Appeal Application Attachment
S & ON F PUBLIC NOTICING REQUIREMENTS
Information for this section may be obtained by requesting a "Radius Package" from a title insurance company. All information is required at the time the appeal is submitted.
The following items are required and must be provided by the applicant:
1. TWO identical gummed label sets (30 labels per sheet). The labels must:
a. Indicate all the nearest property owners' names, mailing address (including unit numbers) that are within a minimum of a 600-foot radius of the exterior boundaries of the project (including all exterior boundaries of all parcels if a project includes multiple parcels). This list must be ascertained from the last equalized assessment roll.
b. Duplicate property owners must be crossed out.
SAMPLE LABELS:
Acceptable Example:
Jane Doe
123 Main St., Unit 1
Temecula, CA 92591
Cross -out Duplicates:
Jane Doe
123 Myra-3l• Unit 1
`.Tertlecula, CA 92591
c. A minimum of 30 individual/different property owners must be included after all duplicates are removed (even if a 600-foot radius is utilized)
d. Include the Planning Application number on the header of the label sets (example below) IPA21-0004
Bob Builder
�iildcr
123 Main Street
123vet
123Temecula,
CA 92591
Temecula, CA 7
Temec�-11
Bo er
nog er
ilQer
123 Main
123 Main.
123 Main t
Temecula, CA 9259
Temecula, CA 475
Temecula, CA82
2. TWO photocopies of the above label sets.
3. The TWO identical gummed label sets & photocopies must be placed in separate 9 1/2" x 12 1/2" manila envelopes. The envelopes shall include the below information on the front:
Example Envelope.
PA21-1001
Noticing Labels
Set 1 of 2
4. TWO gummed labels with the mailing address for the property owner, applicant, engineer, and other representatives. Do not include duplicates if the owner, applicant, etc., are the same. These must be laced in a fetter -sized envelope that is stapled outside of one of the large manila envelopes mentioned in step 3.
5. Certification by the Title Company, engineer, or surveyor that the above list is complete and accurate.
The Tax Assessor's Office will not prepare or certify the property owner list (see certification form attached).
6. A copy of the assessor's parcel map showing all the parcels within the noticing radius. On the map, print the names of all property owners within the noticing radius as they are listed on the gummed labels. If the names are not legible due to the size of the map/lots, a separate spreadsheet may be provided.
PL-52 Rev02/14/23 R:VNPLICATIONSt2022WPPEAL PL 52.DOCX PG. 5/6
PROPERTY OWNERS CERTIFICATION
I, Norman S. Solomon . certify that on 03108/2023
(Print Name)
(Month -day -year)
the attached property owners list was prepared by
Provident Title Company _ pursuant to application requirements furnished by the City of Temecula Planning Department. Said list is a complete and true compilation of owner of the subject property and all other property owners within 600 feet (or the 30 nearest individual property owners, whichever creates the greatest number of public notices (persons owning multiple properties shall only be counted once) of the property involved in the application and is based upon the latest equalized assessment rolls.
I further certify that the information filed is true and correct to the best of my knowledge_ I understand that incorrect or erroneous information may result in processing delays or be grounds for rejection or denial of the application.
Name
Norman S. Salomon_
Title/Registration
Manager, Zip Third Investments LLC
Address
3055 Wilshire Boulevard, No. 1010, Los Angeles, CA 90010 Phone (Daytime)
(310) 355-96020
Signature
Planning Application No.
PA07-0314
Date
03/09/2023
i L-52 Jbex92Laa23 PG. 6/6
Item No. 5
CITY OF TEMECULA
AGENDA REPORT
TO: City Manager/City Council
FROM: Betsy Lowrey, Assistant to the City Manager
DATE: April 25, 2023
SUBJECT: Approve Sponsorship and Economic Development Funding Agreement with the Temecula Valley Balloon and Wine Festival Association, for the Temecula Valley Balloon and Wine Festival
PREPARED BY: Christine Damko, Economic Development Manager RECOMMENDATION: That the City Council approve a Sponsorship and Economic Development Funding Agreement with the Temecula Valley Balloon and Wine Festival Association, for the Temecula Valley Balloon and Wine Festival.
BACKGROUND: The Temecula Valley Balloon and Wine Festival (TVBWF) continues to be a popular annual event that attracts thousands of residents and visitors to Temecula, including a growing market of out-of-state attendees. The event will be held on May 19, 20, and 21, 2023.
The Economic Development Committee of the City Council (Mayor Pro Tern James Stewart and former Council Member Maryann Edwards) met on April 19, 2022 to review the sponsorship funding requests for Fiscal Year 2022-2023, and recommended annual support of the 2023 event in the amount of $27,000.00. The Temecula Valley Balloon and Wine Festival is held yearly at Lake Skinner Recreation area and the 2023 event will once again kick off with morning balloon launches, evening balloon glows, wine tasting, a wine competition and numerous food vendors.
Local and regional breweries are also involved providing beer tasting and food pairings. Each day/evening music concerts are held featuring many different genres and popular talents. The Event includes one of the largest local arts and craft fairs, kids fair, plus local, and regional commercial product vendors.
The Festival increases local spending and generates overnight stays at our local hotels. No commissions, consultant fees and/or salaries will be paid to any party utilizing the City of Temecula's sponsorship funding. The City will also be listed as the event's Premier Sponsor and will be provided maximum advertising opportunities that benefit the City.
The Festival's marketing program includes: media kits, press releases, and photos plus promotions on radio stations that reach Riverside, Orange, Los Angeles and San Diego Counties; collateral materials and publicity campaigns targeting these same areas using newspapers and magazines. In addition, the Festival maintains their website and capitalizes on social media outlets like Facebook,
Instagram and Twitter to impact social networking and provide information on the event and entertainment schedules.
Pursuant to prior year funding agreements, the TVBWF submitted financial statements in early 2023 for the operations of the 2022 festival and will be required to submit financial statements of the 2023 festival operations by December 31, 2023.
FISCAL IMPACT: Adequate funds for the Temecula Valley Balloon and Wine Festival have been included in the Fiscal Year 2022-2023 Annual Operating Budget for the recommended amount of Twenty -Seven Thousand Dollars and No Cents ($27,000.00). There is no fiscal impact associated with the promotional support.
ATTACHMENTS: Sponsorship and Economic Development Funding Agreement
SPONSORSHIP AGREEMENT BETWEEN THE
CITY OF TEMECULA AND TEMECULA VALLEY BALLOON
AND WINE FESTIVAL ASSOCIATION
THIS AGREEMENT is made and effective as of April 25, 2023, by and between the City of Temecula, a municipal corporation (hereinafter referred to as "City"), and Temecula Valley Balloon and Wine Festival Association, a California nonprofit corporation (hereinafter referred to as the "Nonprofit"). In consideration of the mutual covenants, conditions and undertakings set forth herein, the parties agree asfollows:
1. RECITALS
This Agreement is made with respect to the following facts and purposes which each of the parties acknowledge and agree are true and correct:
a. The Nonprofit shall operate the Temecula Valley Balloon and Wine Festival (hereinafter referred to as the "Event") on May 19, May 20, and May 21, 2023. The Event is a special event which is located in the unincorporated area of Riverside County/Temecula Valley. b. The Event includes: morning balloon launches, evening balloon glows, wine tastings from local wineries, beer tasting from local breweries, food vendors, concerts featuring a variety of genres, each day/night. The event will also include a kid's faire and a commercial court with over 150 vendors.
C. Alcohol will be served.
d. The City desires to be a Premier Sponsor of the Event.
2. TERM
This Agreement shall commence on April 25, 2023, and shall remain and continue in effect until tasks described herein are completed, but in no event later than June 30,2023, unless sooner terminated pursuant to the provisions of this Agreement.
3. CONSIDERATION
a. In exchange for providing the Nonprofit with in -kind city -support services, the City will provide use of the conference center for two training courses for volunteers, valued at an amount not to exceed, Two Hundred Fifty Dollars and No Cents ($250.00) and promotional services valued at an amount not to exceed Twenty Seven Thousand Dollars and No Cents ($27,000.00) for as listed in Exhibit B, the City of Temecula shall be designated as a Premier Sponsor of the Event. As a Premier Sponsor the City shall receive sponsor benefits as listed in Exhibit A. In the event that City support services exceeds Twenty -Seven Thousand Dollars and No Cents ($27,000.00), the Nonprofit may seek City authorization for payment above that amount.
b. The Nonprofit is requested to partner with the Temecula Valley Convention & Visitors Bureau ("TVCVB") to help promote the Event. The City of Temecula contracts with the TVCVB to generate Visitor -Related Economic Impact for the City of Temecula. This will include but not be limited to over -night room bookings, dining and shopping within the City of Temecula.
Any media visits coordinated by the Nonprofit shall include an invitation to visit all Temecula entities (i.e. Old Town, wineries, golf). Secondly, the Nonprofit shall include in its basic press kit a press release provided by the TVCVB which focuses on the attractions of Temecula, including Old Town, golf, wineries, etc. This informational piece shall be provided to all media working with the Nonprofit or its representatives on festival -related stories.
C. The Nonprofit shall support economies of the City of Temecula by promoting and utilizing local businesses (e.g. local food vendors, restaurants, wineries, crafters, etc.) first when competitive and practicable.
d. Within 30 days of the effective date of this Agreement, Nonprofit shall submit a timeline showing the milestone dates that each Nonprofit marketing activity, including, but not limited to, public relations and media schedules, marketing measures and other promotional activities, will occur. The purpose of this provision is to ensure that the Nonprofit makes a good faith effort to maximize attendance at the Temecula Valley Balloon and Wine Festival.
4. WRITTEN REPORT
Within ninety (90) days after the conclusion of the Event, the Nonprofit shall prepare and submit to the Assistant to the City Manager a written report evaluating the Event, its attendance, media coverage, and description of the materials in which the City is listed as a Premier Sponsor. The report shall include:
• Guest Profile (Age & Attendance by region)
Room Occupancy Comparative Analysis (Room bookings on non-event weekends vs. room bookings during the TVBWF 2023 Festival and Prior Year) • Visitor Statistics
• Social Media Marketing highlights, promotional activity, and AD value equivalency Overall Effectiveness of marketing campaign (audience impressions and reach)
5. FINANCIAL REVIEW
The Nonprofit shall provide complete financial statements including a balance sheet, income statement and budget to actual comparison report of the Event. This financial review of the Event should be completed and submitted to the City no later than December 31, 2023. The financial review shall provide a general summary report on how funds were expended and used to benefit Temecula Valley residents and shall include documentation, including but not limited to, copies of invoices and receipts to support the Sponsorship Funding. The financial documentation is subject to an audit, as determined by City staff.
6. MEETING ATTENDANCE
The Nonprofit shall attend all City pre -event planning meetings and event recap meetings if warranted.
7. INDEMNIFICATION
The Nonprofit shall indemnify, protect, defend and hold harmless the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency, its elected officials, officers, employees, volunteers, and representatives from any and all suits, claims, demands, losses, defense costs or expenses, actions, liability or damages of whatsoever kind and nature which the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency, its officers, agents and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property arising out of the Nonprofit's negligent or wrongful acts or omissions arising out of or in any way related to the performance or non- performance of this Agreement.
2 8. INSURANCE
The Nonprofit shall secure and maintain from a State of California admitted insurance company, pay for and maintain in full force and effect for the duration of this Agreement an insurance policy of comprehensive general liability against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by May 1, 2023, its agents, representatives, or employees. a. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1) Insurance Services Office Commercial General Liability form No.
CG 00 01 11 85 or 88.
2) Insurance Services Office Business Auto Coverage form CA 00 01 06 92 covering Automobile Liability, code 1 (any auto). If the Recipient owns no automobiles, a non -owned auto endorsement to the General Liability policy described above is acceptable. 3) Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. If the Recipient has no employees while performing under this Agreement, worker's compensation insurance is not required, but Consultant shall execute a declaration that it has no employees.
b. Minimum Limits of Insurance. Consultant shall maintain limits no less than:
1) General Liability: One million ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2) Automobile Liability: One million ($1,000,000) per accident for bodily injury and property damage.
3) Worker's Compensation as required by the State of California; Employer's Liability: One million dollars ($1,000,000) per accident for bodily injury ordisease.
C. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions shall not exceed Twenty -Five Thousand Dollars and No Cents ($25,000). d. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1) The City of Temecula, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees and volunteers are to be covered as insured's, as respects: liability arising out of activities performed by or on behalf of the Nonprofit; products and completed operations of the Recipient; premises owned, occupied or used by the Nonprofit; or automobiles owned, leased, hired or borrowed by the Nonprofit. The coverage shall contain no special limitations on the scope of protection afforded to the City of Temecula, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees or volunteers.
2) For any claims related to this project, the Nonprofit's insurance coverage shall be primary insurance as respects the City of Temecula, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees and volunteers. Any insurance or self -insured maintained by the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula 3 Redevelopment Agency, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. 3) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees or volunteers. 4) The Nonprofit's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
5) Each insurance policy required by this agreement shall be endorsed to state: should the policy be canceled before the expiration date the issuing insurer will endeavor to mail thirty (30) days prior written notice to the City. 6) If insurance coverage is canceled or, reduced in coverage or in limits the Nonprofit shall within two (2) business days of notice from insurer phone, fax, and/or notify the City via certified mail, return receipt requested of the changes to or cancellation of the policy.
e. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of A -:VI I or better, unless otherwise acceptable to the City. Self-insurance shall not be considered to comply with these insurance requirements. f. Verification of Coverage. Nonprofit shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the City. All endorsements are to be received and approved by the City before work commences. As an alternative to the City's forms, the Nonprofit's insurer may provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.
9. GOVERNING LAW
The City and the Nonprofit understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with geographic jurisdiction over the City of Temecula. In the event such litigation is filed by one party against the other to enforce its rights under this Agreement, the prevailing party, as determined by the Court's judgment, shall be entitled to reasonable attorney fees and litigation expenses for the relief granted.
10. LEGAL RESPONSIBILITIES
The Nonprofit shall keep itself informed of all local, State and Federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Nonprofit shall at all times observe and comply with all such ordinances, laws and regulations. The City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Nonprofit to comply with this section.
11. ASSIGNMENT
The Nonprofit shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City. 4 12. NOTICES
"Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, that provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by Notice. Notice shall be effective upon delivery to the addresses specified below or on the third business day following deposit with the document delivery service or United States Mail as provided above.
Mailing Address: City of Temecula
Attn: City Manager
41000 Main Street
Temecula, CA 92590
To Recipient: Temecula Valley Balloon and Wine Festival Association Attn: Kellie Cantrell
PO Box 1254
Temecula, CA 92593-1254
13. INDEPENDENT CONTRACTOR
a. The Nonprofit shall at all times remain as to the City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of the Nonprofit shall at all times be under the Nonprofit's exclusive direction and control. Neither City nor any of its officers, employees, agents, or volunteers shall have control over the conduct of Recipient or any of the Nonprofit's officers, employees, or agents except as set forth in this Agreement. The Nonprofit shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the City. The Nonprofit shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner.
No employee benefits shall be available to the Nonprofit in connection with the performance of this Agreement. Except for the fees paid to the Nonprofit as provided in the Agreement, City shall not pay salaries, wages, or other compensation to the Nonprofit for performing services hereunder for City. City shall not be liable for compensation or indemnification to the Nonprofit for injury or sickness arising out of performing services hereunder.
14. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material.
15. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of the Nonprofit warrants and represents that he or she has the authority to execute this Agreement on behalf of the Nonprofit and has the authority to bind the Nonprofit to the performance of its obligations hereunder. The 5 City Manager is authorized to enter into an amendment on behalf of the City to make the following non -substantive modifications to the agreement: (a) name changes; (b) extension of time; (c) non - monetary changes in scope of work; (d) agreement termination.
E.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
CITY OF TEMECULA
By
Zak Schwank, Mayor
ATTEST:
TEMECULA VALLEY BALLOON AND WINE
FESTIVAL ASSOCIATION
Kellie Cantrell, Executive Director
By: By: r
Randi Johl, City Clerk Scott Soares, Sr., President
APPROVED AS TO FORM:
By:
By: Cz
Doug Ingham, Treas er
Peter M. Thorson, City Attorney CONSULTANT
Temecula Valley Balloon and Wine Festival
Association
Kellie Cantrell
PO Box 1254 Temecula CA 92593
951-676-6713
[email protected]
City Purchasing Mr.
Initials and Date:
Irk 1 i
EXHIBIT "A"
CITY OF TEMECULA SPONSORSHIP BENEFITS
PREMIER SPONSOR
Temecula Valley Balloon and Wine Festival Association shall provide the following benefits and services for the City of Temecula:
• City of Temecula logo/name on advertisements
• City of Temecula name on all press releases
• City of Temecula logo/name on event poster
City of Temecula logo/name on event flyers
• City of Temecula logo/name on eventt-shirt
• 10 Temecula Valley Balloon and Wine Festival t-shirts 0 60 Temecula Valley Balloon and Wine Festival event tickets 25 Temecula Valley Balloon and Wine Festival parking passes "Press Releases will be distributed to all local media, however, publication cannot be guaranteed.
Press Releases can also be provided to all sponsors for distribution to their clients, agents, employees, etc.
H-1
EXHIBIT "B"
IN -KIND SERVICES
ESTIMATED VALUE OF CITY SUPPORT SERVICES AND
COSTS
Based on the input from City departments we received estimated cost projections for the Temecula Valley Balloon and Wine Festival event. The following expenses can beanticipated for the event:
Community Services: $250.00
TOTAL: $250.00
ESTIMATED VALUE OF PROMOTIONAL SERVICES
PROVIDED BY THE CITY OF TEMECULA
The estimated value for promotional assistance provided by The City of Temecula for the Temecula Valley Balloon and Wine Festival is as follows:
ROM Value
Cash $ 27,000.00
In the event the City replaces Temecula Valley Balloon and Wine Festival street pole banners, the cost to do so will be deducted from the cash funding. �7
Item No. 6
CITY OF TEMECULA
AGENDA REPORT
TO: City Manager/City Council
FROM: Luke Watson, Deputy City Manager
DATE: April 25, 2023
SUBJECT: Approve Agreement for the Temecula Home Repair Program with Habitat for Humanity
PREPARED BY: Brandon Rabidou, Principal Management Analyst RECOMMENDATION: That the City Council approve the agreement with Habitat for Humanity for the Temecula Home Repair Program and appropriate $500,000 from the Community Reinvestment Program Fund, as approved conceptually by Council as part of the COVID-19 Pandemic Community Reinvestment Program for fiscal year 2022-23.
BACKGROUND: At the March 8, 2022, City Council meeting, the City Council approved the COVID-19 Pandemic Community Reinvestment Program, which included $500,000 for low/moderate income household critical home improvements. These funds were specifically earmarked for Habitat for Humanity who has provided a similar program through the City's Community Development Block Grant (CDBG) program.
FISCAL IMPACT: The cost of this agreement is $500,000, which was previously approved by the City Council during COVID-19 Pandemic Community Reinvestment Program meetings. Adequate funds will be placed in account 110.199.105.5267.
ATTACHMENTS: 1. Agreement
2. Program Guidelines
CITY OF TEMECULA
TEMECULA HOME REPAIR PROGRAM
GRANT AGREEMENT
THIS GRANT AGREEMENT ("Agreement") is dated April 25, 2023, (the "Effective Date") and is between the City of Temecula (the "City"), a municipal corporation, and Habitat for Humanity Inland Valley, Inc. (the "Grantee"), a nonprofit public benefit corporation.
RECITALS
WHEREAS, the economic challenges faced by qualified low and moderate income homeowners of the City of Temecula have negatively impacted their ability to maintain their properties; and
WHEREAS, the City desires to grant a portion of COVID-19 Pandemic Community Reinvestment program funds for Fiscal Year 2022-2023 and Fiscal Year 2023-2024 to the Grantee (the "Grant" or "Grant Funds") for providing a housing rehabilitation program titled, "Temecula Home Repair Program" (the "Program"), for qualified low and moderate income homeowners of the City of Temecula.
NOW, THEREFORE, the parties agree as follows:
TERM. The term of this Agreement shall start as of the Effective Date and end June 30, 2024, unless a one-year extension is approved in writing by the City Manager, or his or her designee. Upon the expiration of this Agreement, Grantee shall transfer to the City any remaining Grant Funds on hand, and any accounts attributable to the use of the Grant Funds received by Grantee under this Agreement.
2. USE OF FUNDS. Grantee shall use all Grant Funds provided to the Grantee solely for the Program pursuant to the terms and conditions of this Agreement. The Program Guidelines are more particularly set forth in Exhibit "A" attached hereto and incorporated by reference. The Grant Funds shall be used solely to pay for actual expenses incurred by the Grantee for the Program. Grantee shall not use the Grant Funds for the payment of any compensation, salaries, or benefits for directors, officers, or full-time or part-time employees of the Grantee except for reasonable reimbursement of necessary expenses in implementing the uses of the Grant Funds authorized by this Agreement and direct project staffing and indirect program costs per the Program budget included in the Guidelines. All unexpended Grant Funds shall be returned to the City at the end of the Agreement term. Any interest earned on Grant Funds shall be put towards the implementation of the Program.
3. SCOPE OF SERVICES. The Grantee shall administer, including providing all necessary or reasonable labor, materials, services, supervision, tools, equipment, licenses, and permits, the Program, as set forth in Exhibit "A".
4. FUNDS. The City agrees to provide Grantee with Grant Funds in an amount not to exceed $500,000.00, in a manner outlined in Section 5 of this Agreement for the Grantee's program costs. The City shall disburse the Grant Funds up front, as provided in Section 5 (Payment) of this Agreement. Grantee shall provide copies of all invoice(s), bank statements, etc., concerning the use of Grant Funds, as required in a timely manner. Grant Funds may only be used for those verified expenses outlined in the Program. The Grantee is prohibited from using Grant Funds for political activities, religious activities, lobbying, or nepotism.
5. PAYMENT. The City shall make two payments of Grant Funds to the Grantee upon Grantee's submittal and the City's approval, and execution of this Agreement, and Grantee's continued compliance with this Agreement and the Program requirements. The first payment, in the amount of $250,000.00, shall be made in a reasonable timeframe after the execution of this Agreement. The second payment, in the amount $250,000.00, shall be made once seventy percent (70%) of the initial Grant Funds have been expended in compliance with this Agreement, and all Program requirements.
6. MAINTENANCE OF FUNDS. All Grant Funds received by Grantee shall be maintained in an account separate and apart from all other funds of Grantee with a bank or savings and loan association qualified to do business in the State of California and insured by the Federal Deposit Insurance Corporation ("FDIC"). In the event that the amount of Grant Funds exceeds the FDIC insurance limit, the Grant Funds shall be split up and deposited in more than one bank, with no more than the amount of the FDIC insurance limit being deposited in one bank, and each bank shall be insured by the FDIC.
7. PROCUREMENT. Grantee shall not use funds received from the City pursuant to this Agreement to procure materials, equipment or property or acquire or improve real property, not related to the Program guidelines outlined in Exhibit A (the "Guidelines"). The City is providing funding for Grantee's Program as specified in Exhibit A.
8. REPRESENTATIONS AND WARRANTIES. The Grantee hereby represents and warrants to the City as follows: The Grantee has read and is familiar with all of the terms and provisions of the Guidelines. The Grantee's intended uses of the Grant Funds are permitted uses under the Guidelines.
9. AUDITING. All Grantee records with respect to any matters covered by this Agreement shall be made available to the City or any of its authorized representatives at any time during normal business hours, as often as deemed necessary, to audit, examine, and make excerpts or transcripts of all relevant data.
Any deficiencies noted in audit reports must be fully cleared by the Grantee within sixty (60) calendar days after receipt of notice by the Grantee of such deficiencies.
Failure of the Grantee to comply with the above audit requirements will constitute a default under this Agreement and may result in the withholding of future payments. In addition, the Grantee shall be subject to random audits by the City in its administration of the Program.
10. REPORTING. The Grantee shall provide City or any authorized recipient, any reports, forms, or other documentation required by this Agreement, the Guidelines, and any applicable law. The Grantee shall provide the City with such reports and information as the City may reasonably request in order to allow the City to comply with this Agreement, the Guidelines, and any applicable law. The Grantee's obligations under this Section shall survive the termination of this Agreement. If the Grantee fails to follow the reporting requirements, the Grantee may be required to reimburse Grant Funds already disbursed to it, to the extent such funds have not been properly spent under the Guidelines. However, prior to making any demand to reimburse Grant Funds under this section, Grantee shall receive thirty (30) days' notice and an opportunity to cure any alleged reporting deficiencies.
11. LICENSING. The Grantee shall obtain and maintain all licenses, registrations, accreditation, and inspections from all agencies governing its activities under this Agreement. The Grantee shall ensure that its staff shall also obtain and maintain all required licenses, registrations accreditation and inspections from all agencies governing the Grantee's activities under this Agreement.
12. RECORDS. The Grantee shall maintain all records as to the use and expenditure of funds under this Agreement, as well as all documents pertaining to the Program and required reporting records. All documents and records shall be made available for inspection and copying during normal business hours by the City. The Grantee shall retain all financial records, supporting documents, statistical records and all other records pertinent to this Agreement for four (4) years from the termination or expiration of this Agreement. Notwithstanding the above, if there is litigation, claims, audits, or other actions that arise out of the Program in any way (collectively "Claims"), and notice of such Claims has been provided to City or Grantee, before the expiration of the four-year period, then such records shall be retained by Grantee until resolution of the Claims, or the expiration of the four-year period, whichever occurs later.
13. INDEMNIFICATION.
A. The Grantee agrees to defend, indemnify, protect and hold harmless the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency, its officers, officials, employees and volunteers from and against any and all claims, demands, losses, defense costs or expenses, including attorney fees and expert witness fees, or liability of any kind or nature which the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency, its officers, agents, employees or volunteers may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property arising out of Grantee's acts or omissions arising out of or in any way related to the performance or non-performance of this Agreement, excepting only liability arising out of the sole negligence of the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula
Redevelopment Agency.
B. City does not, and shall not, waive any rights that it may possess against the Grantee because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement.
This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost, or expense. The Grantee agrees that the Grantee's covenant under this Section shall survive the expiration or termination of this Agreement.
C. Non -liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Grantee, 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 Grantee or to its successor, or for breach of any obligation of the terms of this Agreement.
14. INSURANCE. Grantee shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property arising in any manner from Grantee's activities funded pursuant to this Agreement or in connection with the activities of the Grantee, its agents, representatives, or employees.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
-) Insurance Services Office Commercial General Liability form No.
CG 00 01 11 85 or 88.
22 Insurance Services Office Business Auto Coverage form CA 00 01 06 92 covering Automobile Liability, code 1 (any auto). If the Grantee owns no automobiles, a non -owned auto endorsement to the General Liability policy described above is acceptable.
3J Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. If the Grantee has no employees while performing under this Agreement, worker's compensation insurance is not required, but Grantee shall execute a declaration that it has no employees.
B. Minimum Limits of Insurance. Grantee shall maintain limits no less than:
1) General Liability: One million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
22) Automobile Liability: One million dollars ($1,000,000) per accident for bodily injury and property damage.
-31 Worker's Compensation as required by the State of California; Employer's Liability: One Million Dollars ($1,000,000) per accident for bodily injury or disease.
Q. Deductible and Self -Insured Retention. Consultant agrees any deductibles and self -insured retentions shall not exceed Seven Hundred Fifty Thousand dollars and No Cents ($750,000).
D.. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1n The City, Temecula Community Services District, Successor Agency to the Temecula Redevelopment Agency, Temecula Housing Authority and their officers, officials, employees and volunteers are to be covered as additional, insureds as respects: liability arising out of activities performed by or on behalf of the Grantee; premises owned, occupied or used by the Grantee; or automobiles owned, leased, hired or borrowed by the Grantee. The coverage shall contain no special limitations on the scope of protection afforded to the City, Temecula Community Services District, Successor Agency to the Temecula Redevelopment Agency, Temecula Housing Authority and their officers, officials, employees or volunteers. 21 For any claims related to this project, the Grantee's insurance coverage shall be primary insurance as respects the City, Temecula Community Services District, Successor Agency to the Temecula Redevelopment Agency, Temecula Housing Authority and their officers, officials, employees and volunteers. Any insurance or self -insured maintained by the City, Temecula Community Services District, Successor Agency to the Temecula Redevelopment Agency, Temecula Housing Authority and their officers, officials, employees or volunteers shall be excess of the Grantee's insurance and shall not contribute with it.
:b Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the of City of Temecula, the Temecula Community Services District, and the Successor Agency to the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees or volunteers.
44) The Grantee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
5Q Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
E. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A-:VII, unless otherwise approved in writing by the City Manager in his sole discretion.
F Verification of Coverage. Grantee shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the City. All endorsements are to be received and approved by the City before work commences. As an alternative to the City's forms, the Grantee's insurer may provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.
15 SUSPENSION AND TERMINATION,
A. City may terminate this Agreement upon sixty (60) calendar days' written notice to the Grantee. Additionally, City may terminate this Agreement upon seven (7) calendar days' written notice to the Grantee if City determines in its sole discretion that such action is necessary to respond to an earthquake, fire or other act of God. In the event of termination, the Grantee shall be entitled to reimbursement only for eligible expenses incurred up to the effective date of termination.
B. The City may suspend or terminate this Agreement if the Grantee materially fails to comply with any term of this Agreement, which include, without limitation, the following:
1) Failure to comply with any of the rules, regulations or provisions referred to herein, or such statutes, regulations, executive orders, or directives as may become applicable at any time;
2) Failure, for any reason, of the Grantee to fulfill in a timely and proper manner its obligations under this Agreement;
3) Improper use of funds provided under this Agreement; or 4) Submission by the Grantee to the City of reports that are incorrect or incomplete in any material respect, after Grantee has had sixty (60) days' notice and an opportunity to cure any such deficiencies identified in such reports.
C. This Agreement may also be terminated for convenience by the City or the Grantee, in whole or in part, by setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if in the case of a partial termination, the City determines that the remaining portion of the Agreement will not accomplish the purpose for which the Agreement was made, the City may terminate this Agreement in its entirety. However, City shall provide Grantee sixty (60) days' notice of any termination for convenience under this section.
D. If the City demands full or partial repayment of any unused Grant Funds due to the Grantee's failure to comply with any applicable term of this Agreement, including the Guidelines, the Grantee shall repay the City within seven business days.
16. INDEPENDENT CONTRACTOR. Neither the City nor any of its employees shall have any control over the manner, mode or means by which the Grantee, its agents or employees, implements the Program as required herein, except as otherwise set forth herein. The City shall have no authority over of influence upon the selection, discharge, supervision or control of the Grantee's employees, servants, representatives or agents, or in fixing their number, compensation, or hours of service. The Grantee shall implement the Program as required herein as an independent contractor of the City and shall remain at all times as to the City a wholly independent contractor with only such obligations as are consistent with this role. The Grantee shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of the City. The City shall not in any way or for any purpose become or be deemed to be a partner of the Grantee in its business, a joint venture, or a member of any joint enterprise with the Grantee. The City shall be exempt from payment of all Unemployment Compensation, FICA, retirement, life and/or medical insurance and Workers' Compensation Insurance, as the Grantee is an independent contractor. 17 CITY RECOGNITION. The Grantee shall insure recognition of the role of the City in administering the Program through this Agreement. All activities, facilities and items utilized pursuant to this Agreement shall be prominently labeled as to funding source. In addition, the Grantee will include a reference to the support provided by the City in this Program, in all publications that were made possible with the Grant Funds provided under this Agreement.
18. SUBCONTRACTING AND ASSIGNMENT. Neither this Agreement nor any interest herein may be transferred, assigned, conveyed, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of the City. The Grantee shall furnish and cause each of its approved subcontractors to furnish all information and reports required under this Agreement and will permit access to its books, records and accounts by the City or its agents for purposes of investigation to ascertain compliance with the rules, regulations and provisions stated in this Agreement. The Grantee shall send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or worker's representative of the Grantee's commitments hereunder, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
19. WAIVER. Waiver by either party of any of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by the City of any payment to the Grantee constitute or be construed as a waiver by the City of any breach of
covenant, or any default that may then exist on the part of the Grantee, and the making of any such payment by the City shall in no way impair or prejudice any right or remedy available to the City with regard to such breach or default.
ENTIRE AGREEMENT AND MODIFICATION. This Agreement contains the entire agreement of the parties and supersedes all other prior negotiations, understandings or agreements. This Agreement may be modified only by the written consent of the parties. The City may, in its discretion, amend this Agreement to conform with federal, state or local governmental guidelines, policies and available funding amounts, or for other reasons. If such amendments result in a change in the funding, the scope of services, or schedule of the activities to be undertaken as part of this Agreement, such modifications will be incorporated only by written amendment signed by both the City and the Grantee. 21 NON-DISCRIMINATION COVENANTS. Grantee covenants and agrees that it shall comply with the Unruh Civil Rights Act (California Civil Code Section 51) and that there shall be no discrimination against or segregation of any person or group of persons on account of the bases set forth in the Act.
22. NOTICE. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid first class mail, to the following addresses:
To City: City of Temecula
Attn: City Manager
41000 Main Street
Temecula, CA 92590
To Grantee: Habitat for Humanity Inland Valley
Attn: Executive Director
27475 Ynez Road, #390
Temecula, CA 92591
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 72 hours from the time of mailing if mailed as provided in this Section.
23. CORPORATE AUTHORITY. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) such persons are duly authorized to execute and deliver this Agreement, on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound.
24. HEADINGS. The headings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
25 SEVERABILITY. If any provision of this Agreement is held invalid, the remainder of the Agreement shall not be affected thereby and all other parts of this Agreement shall remain in full force and effect.
22 . The City and Grantee understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with geographic jurisdiction over the City of Temecula. In the event such litigation is filed by one party against the other to enforce its rights under this Agreement, the prevailing party, as determined by the Court's judgment, shall be entitled to reasonable attorney fees and litigation expenses for the relief granted.
27. COMPLIANCE WITH LAW. Grantee shall keep itself informed of all local, State and Federal ordinances, laws and regulations which in any manner affect the Grantee or those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Grantee shall at all times observe and comply with all such ordinances, laws and regulations.
28. PROHIBITED INTEREST. No officer, or employee of the City of Temecula shall have any financial interest, either direct or indirect in: this Agreement, the proceeds thereof, the Grantee, or Grantee's sub -contractors. Grantee hereby warrants and represents to the City that no officer or employee of the City of Temecula has any interest, whether contractual, non -contractual, financial or otherwise, in this transaction, or in the business of the Grantee. Grantee further agrees to notify the City in the event any such interest is discovered, whether or not such interest is prohibited by law or this Agreement.
29. NO THIRD -PARTY BENEFICIARIES INTENDED. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire any rights by virtue of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by its officers on the date written introductory clause.
CITY OF TEMECULA
BY:
Attest:
Aaron Adams, City Manager
City of Temecula
Randi Johl
City Clerk
Approved as to Form:
Peter M. Thorson
City Attorney
GRANTEE
HABITAT FORMW1%Afd1TY JNVLAND VALLEY, INC.
BY:
LM
arine
Chief Executive Officer
(� nn't-�' 0 2, "-A,-
Connie French
Board Chair
EXHIBIT "A"
PROGRAM IMPLEMENTATION GUIDELINES
Aft
The Heart of Southern California
Wine Country
CITY OF TEMECULA
TEMECULA HOME REPAIR
PROGRAM GUIDELINES
March 2023
Temecula Home Repair - Program Guidelines Page 1 of 6
Contents
Introduction.............................................................................................................................. 3 ProgramDescription................................................................................................................ 3 ProgramBudget...................................................................................................................... 3 ProgramEligibility..................................................................................................................... 4 Reporting and Documentation.............................................................................................. 4 Conflictof Interest................................................................................................................... 5 Program Guidelines Changes or Modifications.................................................................... 5 Applicant Confidentiality........................................................................................................ 6 Nondiscrimination.................................................................................................................... 6 Program/Marketing................................................................................................................. 6 Temecula Home Repair - Program Guidelines Page 2 of 6
Introduction
As a result of the COVID-19 pandemic, the City of Temecula desires to reinvest funds in the community to assist with home repairs for homeowners who make below 80% of Area Median Income (AMI). The funds will help homeowners with critical repairs such as roof repairs, HVAC repairs, and other similar repairs that make material improvements for the health, safety, and quality of life for our residents. This program will be administered by a Grantee, in compliance with the program requirements.
Program Description
The Temecula Home Repair Program looks to provide minor and major exterior home repair grants to qualified low-income households within the City of Temecula. A qualified low-income household shall mean homeowners that earn 80% of the Area Median Income (AMI). Qualified repairs may include:
• Roof/repairs/replacements
■ Heating, Ventilation, and Air Conditioning (HVAC) repairs and replacements • Window retrofits
• Wheelchair lifts
• Accessibility improvements
• Exterior home painting
• Fascia repair
• Life safety repairs (smoke alarms, carbon monoxide alarms, etc.) • Unsafe patio/deck repair/replacement
• Water heater repair/replacement
• Other similar maintenance projects
The program shall include rigorous verification of income qualifications, need, project quality, compliance with all local, state, and federal regulations, and ultimately project completion.
Program Budget
The program budget shall be as follows:
Project Expense
Amount
Direct Project Staffing
$30,000
Job Materials and Supplies
$20,000
Subcontractors
$400,000
Indirect Overhead Costs 10%
$50,000
Total Budget
$500,000
Indirect overhead costs shall not exceed the percentage of total budget (10%) as listed above. If the project expends less than the total budget amount, the indirect overhead costs shall not exceed the total percent identified of the revised amount.
Temecula Home Repair - Program Guidelines Page 3 of 6
Program Eligibility
To determine program eligibility, the Grantee will determine that all beneficiaries meet the following qualifications.
1. The beneficiary may only use the program once during the term of the agreement. The one-time use may include multiple repairs.
2. An individual address may only use the program once during the term of the agreement, regardless of any change in ownership that may occur during the program.
3. Expenditures are limited to a $20,000 maximum per household.
4. Income eligibility requirements must be met, as listed below.
To determine income eligibility, the Grantee will use the annual income as defined by the United States Department of Housing and Urban Development (HUD). This definition is commonly called the Part 5 method. This eligibility table may be replaced by future HUD updates, as listed on�)ttps:// www.-hiduser.gov/.portal/datasets/il.htmi .
Riverside -San Bernardino -Ontario, California MSA
Family
1 person
2 3
4 5
��6
7 8
Size
people
people
people
people
a
people
Income
Limit
$ 49,300
$56,350
$63,400
$70,400
$76,050
$81,700
$87,300
$92,950
Reporting and Documentation
The Grantee shall provide detailed reporting and documentation to verify that all funds are expended in accordance with all local, state, and federal regulations, as well as requirements outlined in the agreement, and these program guidelines. Additionally, all accounting shall follow Generally Accepted Accounting Principles (GAAP).
Documentation shall include:
• Date of Request
• Project name with a unique number attached to each project • Project address
• Project name
• Owner's name
• Owner's phone
• Income verification and eligibility
• Phone number responsible person
• Signature of responsible person
• Title of responsible person
• A detailed breakdown of all costs expended for each project verification, including:
o Description of work
o Project costs
o Expended amount
Temecula Home Repair - Program Guidelines Page 4 of 6
o Funding through other sources
o Notes that provide additional details on the project
• Contractor and subcontractor estimates
• Project work scope
• Contractor agreements
o Including a conflict -of -interest statement
• Invoices with details
• Copies payment
• Employee records if billed against the project
• Time sheets detailing program requirements
• A Certificate of Completion
• Photos
o Date stamped photos of before project
o Date stamped photos of after project
• A running list of all projects that includes:
o Unique project number
o Total expenditures for the project
o Quarter in which the project was completed
Reporting shall be provided on a quarterly basis (on a regular fiscal quarter system), with reports provided on the following schedule:
Reporting Period
Reporting Due
Date
Quarter 1, 2023
Aril 15, 2023
Quarter 2, 2023
July 15, 2023
Quarter 3, 2023
October 15, 2023
Quarter 4, 2023
January 15, 2024
Quarter 1, 2024
Aril 15, 2024
Quarter 2, 2024
July 15, 2024
Conflict of Interest
No member of the governing body and no official, employee or agent of the local government, nor any other person, either for themselves or those with whom they have business or immediate family ties, who exercises policy or decision -making responsibilities will financially benefit from this program.
Program Guidelines Changes or Modifications
Minor changes to these Implementation Guidelines involving administrative procedures or accommodations to adapt to unique applicant situations or opportunities, or regulatory changes may be performed with the approval of the Community Development Department.
Temecula Home Repair - Program Guidelines Page 5 of 6
Applicant Confidentiality
Grantees City will not disclose any applicant's personal confidential information as part of the program. All confidential information of applicants will be kept in a locked secured storage facility or password protected electronic files and unavailable to persons outside of the program.
Nondiscrimination
The Program shall be implemented consistent with the City's commitment to State and Federal equal opportunity laws. No person shall be excluded from participation in, denied the benefit of, or be subjected to discrimination under any program or activity funded in whole or in part with program funds on the basis of their disability, family status, national origin, race, color, religion, sex, marital status, medical condition, ancestry, source of income, age, sexual orientation, gender identity, gender expression, genetic information, or other arbitrary discrimination.
The Grantee will provide reasonable accommodations and/or modifications or provide language assistance to individuals requesting such assistance to benefit from the services provided by the Program.
Program/Marketing
Program marketing shall be initiated by the Grantee. The Grantee may also request City support of the program, with adequate notification. Marketing will include:
• Social Media postings/ Public Service Announcements/ Advertisements in a media of general circulation.
• Public service announcements on City cable television. • Posting at community centers and other locations where individuals and families seek services;
• Any other means of advertising as approved by deemed appropriate by the Community Development Department.
Marketing and outreach shall facilitate fair access and transparency. The program shall not rely solely on web -based marketing and outreach. Alternative, non -digital forms may include electronic display board advertisements, or shared marketing with other entities/ organizations providing emergency assistance. Information for applicants shall include any necessary pandemic related disclosures and social distancing guidelines.
A log shall be kept to document marketing and outreach to individuals and families who may be eligible for the Program.
Temecula Home Repair - Program Guidelines Page 6 of 6
Alft
4T
The Heart of Southern California
Wine Country
CITY OF TEMECULA
TEMECULA HOME REPAIR
PROGRAM GUIDELINES
March 2023
Temecula Home Repair - Program Guidelines Page 1 of 6
Contents
Introduction................................................................................................................................... 3 ProgramDescription.................................................................................................................... 3 ProgramBudget........................................................................................................................... 3 ProgramEligibility..........................................................................................................................4 Reporting and Documentation..................................................................................................4 Conflictof Interest........................................................................................................................ 5 Program Guidelines Changes or Modifications....................................................................... 5 ApplicantConfidentiality............................................................................................................ 6 Nondiscrimination......................................................................................................................... 6 Program/Marketing...................................................................................................................... 6 Temecula Home Repair - Program Guidelines Page 2 of 6
Introduction
As a result of the COVID-19 pandemic, the City of Temecula desires to reinvest funds in the community to assist with home repairs for homeowners who make below 80% of Area Median Income (AMI). The funds will help homeowners with critical repairs such as roof repairs, HVAC repairs, and other similar repairs that make material improvements for the health, safety, and quality of life for our residents. This program will be administered by a Grantee, in compliance with the program requirements.
Program Description
The Temecula Home Repair Program looks to provide minor and major exterior home repair grants to qualified low-income households within the City of Temecula. A qualified low-income household shall mean homeowners that earn 80% of the Area Median Income (AMI). Qualified repairs may include:
• Roof/repairs/replacements
• Heating, Ventilation, and Air Conditioning (HVAC) repairs and replacements • Window retrofits
• Wheelchair lifts
• Accessibility improvements
• Exterior home painting
• Fascia repair
• Life safety repairs (smoke alarms, carbon monoxide alarms, etc.) • Unsafe patio/deck repair/replacement
• Water heater repair/replacement
• Other similar maintenance projects
The program shall include rigorous verification of income qualifications, need, project quality, compliance with all local, state, and federal regulations, and ultimately project completion.
Program Budget
The program budget shall be as follows:
Project Expense
Amount
Direct Project Staffing
$30,000
Job Materials and Supplies
$20,000
Subcontractors
$400,000
Indirect Overhead Costs 10%
$50,000
Total Budget
$500,000
Indirect overhead costs shall not exceed the percentage of total budget (10%) as listed above. If the project expends less than the total budget amount, the indirect overhead costs shall not exceed the total percent identified of the revised amount.
Temecula Home Repair - Program Guidelines Page 3 of 6
Program Eligibility
To determine program eligibility, the Grantee will determine that all beneficiaries meet the following qualifications.
1. The beneficiary may only use the program once during the term of the agreement. The one-time use may include multiple repairs.
2. An individual address may only use the program once during the term of the agreement, regardless of any change in ownership that may occur during the program.
3. Expenditures are limited to a $20,000 maximum per household.
4. Income eligibility requirements must be met, as listed below.
To determine income eligibility, the Grantee will use the annual income as defined by the United States Department of Housing and Urban Development (HUD). This definition is commonly called the Part 5 method. This eligibility table may be replaced by future HUD updates, as listed on https://www.huduser.gov/portal/datasets/il.html .
Riverside -San Bernardino -Ontario, California MSA
Family 1 person 2 3 4 5 6 7 8
Size people people people people people people people
Income 49,300
Limit $ $56,350 $63,400 $70,400 $76,050 $81,700 $87,300 $92,950 Reporting and Documentation
The Grantee shall provide detailed reporting and documentation to verify that all funds are expended in accordance with all local, state, and federal regulations, as well as requirements outlined in the agreement, and these program guidelines. Additionally, all accounting shall follow Generally Accepted Accounting Principles (GAAP).
Documentation shall include:
• Date of Request
• Project name with a unique number attached to each project • Project address
• Project name
• Owner's name
• Owner's phone
• Income verification and eligibility
• Phone number responsible person
• Signature of responsible person
• Title of responsible person
• A detailed breakdown of all costs expended for each project verification, including:
o Description of work
o Project costs
o Expended amount
Temecula Home Repair - Program Guidelines Page 4 of 6
o Funding through other sources
o Notes that provide additional details on the project
• Contractor and subcontractor estimates
• Project work scope
• Contractor agreements
o Including a conflict -of -interest statement
• Invoices with details
• Copies payment
• Employee records if billed against the project
• Time sheets detailing program requirements
• A Certificate of Completion
• Photos
o Date stamped photos of before project
o Date stamped photos of after project
• A running list of all projects that includes:
o Unique project number
o Total expenditures for the project
o Quarter in which the project was completed
Reporting shall be provided on a quarterly basis (on a regular fiscal quarter system), with reports provided on the following schedule:
Reporting Period
Reporting Due
Date
Quarter 1, 2023
April 15, 2023
Quarter 2, 2023
July 15, 2023
Quarter 3, 2023
October 15, 2023
Quarter 4, 2023
January 15, 2024
Quarter 1, 2024
April 15, 2024
Quarter 2, 2024
July 15, 2024
Conflict of Interest
No member of the governing body and no official, employee or agent of the local government, nor any other person, either for themselves or those with whom they have business or immediate family ties, who exercises policy or decision -making responsibilities will financially benefit from this program.
Program Guidelines Changes or Modifications
Minor changes to these Implementation Guidelines involving administrative procedures or accommodations to adapt to unique applicant situations or opportunities, or regulatory changes may be performed with the approval of the Community Development Department.
Temecula Home Repair - Program Guidelines Page 5 of 6
Applicant Confidentiality
Grantees City will not disclose any applicant's personal confidential information as part of the program. All confidential information of applicants will be kept in a locked secured storage facility or password protected electronic files and unavailable to persons outside of the program.
Nondiscrimination
The Program shall be implemented consistent with the City's commitment to State and Federal equal opportunity laws. No person shall be excluded from participation in, denied the benefit of, or be subjected to discrimination under any program or activity funded in whole or in part with program funds on the basis of their disability, family status, national origin, race, color, religion, sex, marital status, medical condition, ancestry, source of income, age, sexual orientation, gender identify, gender expression, genetic information, or other arbitrary discrimination.
The Grantee will provide reasonable accommodations and/or modifications or provide language assistance to individuals requesting such assistance to benefit from the services provided by the Program.
Program/Marketing
Program marketing shall be initiated by the Grantee. The Grantee may also request City support of the program, with adequate notification. Marketing will include:
• Social Media postings/ Public Service Announcements/ Advertisements in a media of general circulation.
• Public service announcements on City cable television. • Posting at community centers and other locations where individuals and families seek services;
• Any other means of advertising as approved by deemed appropriate by the Community Development Department.
Marketing and outreach shall facilitate fair access and transparency. The program shall not rely solely on web -based marketing and outreach. Alternative, non -digital forms may include electronic display board advertisements, or shared marketing with other entities/ organizations providing emergency assistance. Information for applicants shall include any necessary pandemic related disclosures and social distancing guidelines.
A log shall be kept to document marketing and outreach to individuals and families who may be eligible for the Program.
Temecula Home Repair - Program Guidelines Page 6 of 6
Item No. 7
CITY OF TEMECULA
AGENDA REPORT
TO: City Manager/City Council
FROM: Luke Watson, Deputy City Manager
DATE: April 25, 2023
SUBJECT: Approve Agreement for Consultant Services with Fehr & Peers, Inc., for Complete Streets Policy Document
PREPARED BY: Katie Garcia, Planning Technician
RECOMMENDATION: That the City Council approve an agreement for consultant services with Fehr & Peers, Inc., in the amount of $59,500, for the Complete Streets Policy Document.
BACKGROUND: Fehr & Peers will provide a Complete Streets Policy Document for the City of Temecula to ensure transportation infrastructure is designed to enhance safety, accessibility, and mobility for all users. This document will contribute to the future General Plan update.
FISCAL IMPACT: The $59,500 consultant fee is completely funded by the Local Early Action Planning (LEAP) Program Grant and budgeted in the Comprehensive General Plan Update Capital Improvement Project for the Complete Streets Policy Document.
ATTACHMENTS: Agreement
AGREEMENT FOR CONSULTANT SERVICES BETWEEN
CITY OF TEMECULA AND FEHR & PEERS, INC.
COMPLETE STREETS
THIS AGREEMENT is made and effective as of April 25, 2023 between the City of Temecula, a municipal corporation (hereinafter referred to as "City"), and Fehr & Peers, Inc. a.
Corporation, (hereinafter referred to as "Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
TERM
This Agreement shall commence on April 25, 2023 and shall remain and continue in effect until tasks described herein are completed, but in no event later than April 25, 2024 unless sooner terminated pursuant to the provisions of this Agreement.
2. SERVICES
Consultant shall perform the services and tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. Consultant shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A.
3. PERFORMANCE
Consultant shall faithfully and competently exercise the ordinary skill and competence of members of their profession. Consultant shall employ all generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement.
4. PAYMENT
a. The City agrees to pay Consultant monthly, in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit B, Payment Rates and Schedule, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. Any terms in Exhibit B, other than the payment rates and schedule of payment, are null and void. This amount shall not exceed fifty- nine thousand five hundred dollars and zero cents ($59,500.00), for the total term of this agreement unless additional payment is approved as provided in this Agreement. b. Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the City Council.
Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by City Council and Consultant at the time City's written authorization is given to Consultant for the performance of said services.
C. Consultant will submit invoices monthly for actual services performed.
Invoices shall be submitted between the first and fifteenth business day of each month, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non -disputed fees. If the City disputes any of Consultant's fees, it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed 08/09/2021
fees set forth on the invoice. For all reimbursements authorized by this Agreement, Consultant shall provide receipts on all reimbursable expenses in excess of Fifty Dollars ($50) in such form as approved by the Director of Finance.
5. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE a. The City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the City suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement.
b. In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City, pursuant to Section entitled "PAYMENT" herein.
6. DEFAULT OF CONSULTANT
a. The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant's control, and without fault or negligence of the Consultant, it shall not be considered a default. b. If the City Manager or his delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, it shall serve the Consultant with written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
7. OWNERSHIP OF DOCUMENTS
a. Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of City or its designees at reasonable times to such books and records, shall give City the right to examine and audit said books and records, shall permit City to make transcripts there from as necessary, and shall allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. 08/09/2021
b. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files containing data generated for the work, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused or otherwise disposed of by the City without the permission of the Consultant. With respect to computer files containing data generated for the work, Consultant shall make available to the City, upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files.
8. INDEMNIFICATION
The Consultant agrees to defend, indemnify, protect and hold harmless the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency, its officers, officials, employees and volunteers from and against any and all claims, demands, losses, defense costs or expenses, including attorney fees and expert witness fees, or liability of any kind or nature which the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency, its officers, agents, employees or volunteers may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property arising out of Consultant's negligent or wrongful acts or omissions arising out of or in any way related to the performance or non- performance of this Agreement, excepting only liability arising out of the negligence of the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency.
9. INSURANCE REQUIREMENTS
a. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees.
Minimum Scope of Insurance. Coverage shall be at least as broad as:
1) Insurance Services Office Commercial General Liability form No. CG 00 01 11 85 or 88.
2) Insurance Services Office Business Auto Coverage form CA 00 01 06 92 covering Automobile Liability, code 1 (any auto). If the Consultant owns no automobiles, a non -owned auto endorsement to the General Liability policy described above is acceptable. 3) Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. If the Consultant has no employees while performing under this Agreement, worker's compensation insurance is not required, but Consultant shall execute a declaration that it has no employees. 4) Professional Liability Insurance shall be written on a policy form providing professional liability for the Consultant's profession.
C. Limits of Insurance. Consultant shall maintain limits no less than:
1) General Liability: One Million ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other O8/09/2021
form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2) Automobile Liability: One Million ($1,000,000) accident for bodily injury and property damage.
3) Worker's Compensation as required by the State of California; Employer's Liability: One Million Dollars ($1,000,000) per accident for bodily injury or disease. 4) Professional Liability Coverage: One Million Dollars ($1,000,000) per claim and in aggregate.
d. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions shall not exceed Twenty Five Thousand Dollars and No Cents ($25,000). e. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1) The City of Temecula, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees and volunteers are to be covered as insured's, as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased, hired or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the City of Temecula, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees or volunteers.
2) For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Temecula, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees and volunteers. Any insurance or self -insured maintained by the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. 3) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Temecula, the Temecula Community Services District, and the Successor Agency to the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees or volunteers.
4) The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
5) Each insurance policy required by this agreement shall be endorsed to state in substantial conformance to the following: If the policy will be canceled before the expiration date the insurer will notify in writing to the City of such cancellation not less than thirty (30) days' prior to the cancellation effective date.
6) If insurance coverage is canceled or, reduced in coverage or in limits the Consultant shall within two (2) business days of notice from insurer phone, fax, and/or notify the City via certified mail, return receipt requested of the changes to or cancellation of the policy.
08/09/2021
f. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of A-:VII or better, unless otherwise acceptable to the City. Self insurance shall not be considered to comply with these insurance requirements. g. Verification of Coverage. Consultant shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the City. All endorsements are to be received and approved by the City before work commences. As an alternative to the City's forms, the Consultant's insurer may provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.
10. INDEPENDENT CONTRACTOR
a. Consultant is and shall at all times remain as to the City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, agents, or volunteers shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the City.
Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner.
b. No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder.
11. LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of all local, State and Federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such ordinances, laws and regulations. The City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this section.
12. RELEASE OF INFORMATION
a. All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization. Consultant, its officers, employees, agents or subcontractors, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. b. 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 08/09/2021
request, court order or subpoena from any party regarding this Agreement and the work performed there under or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent Consultant and/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, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
13. NOTICES
Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, that provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by Notice. Notice shall be effective upon delivery to the addresses specified below or on the third business day following deposit with the document delivery service or United States Mail as provided above.
Mailing Address: City of Temecula
Attn: City Manager
41000 Main Street
Temecula, CA 92590
To Consultant: Fehr & Peers, Inc.
Attn: Katy Cole
555 West Beech Street, Suite 302
San Diego, CA 92101
14. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City. Upon termination of this Agreement, Consultant's sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the City Council and the Consultant.
15. LICENSES
At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement.
16. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with geographic jurisdiction over the City of Temecula. In the event such litigation is filed by one party against the other to enforce its rights under this Agreement, the prevailing party, as determined by the Court's judgment, shall be entitled to reasonable attorney fees and litigation expenses for the relief granted.
17. PROHIBITED INTEREST
08/09/2021
No officer, or employee of the City of Temecula that has participated in the development of this agreement or its approval shall have any financial interest, direct or indirect, in this Agreement, the proceeds thereof, the Consultant, or Consultant's sub -contractors for this project, during his/her tenure or for one year thereafter. The Consultant hereby warrants and represents to the City that no officer or employee of the City of Temecula that has participated in the development of this agreement or its approval has any interest, whether contractual, non - contractual, financial or otherwise, in this transaction, the proceeds thereof, or in the business of the Consultant or Consultant's sub -contractors on this project. Consultant further agrees to notify the City in the event any such interest is discovered whether or not such interest is prohibited by law or this Agreement.
18. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material.
19. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants and represents that he or she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. The City Manager is authorized to enter into an amendment on behalf of the City to make the following non -substantive modifications to the agreement: (a) name changes; (b) extension of time; (c) non -monetary changes in scope of work; (d) agreement termination.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
CITY OF TEMECULA
By:
Zak Schwank, Mayor
ATTEST:
By.
Rand! Johl, City Clerk
APPROVED AS TO FORM:
By:
FEHR & PEERS, INC.
By.
cl�
Sa Brandenberg, Principal
Steve Brown, Principal
Peter M. Thorson, City Attorney CONSULTANT
Fehr & Peers, Inc.
Attn: Katv Cole
655 West Beech St., Suite 302
_San Diego, CA 92101
619-234-3190
[email protected]
City Purchasing Mgr.
Initials and Date:
13 08/09/2021
EXHIBIT A
Tasks to be Performed
All tasks to be performed are per the proposal provided by the Consultant attached hereto and incorporated herein as though set forth in full. 08/09/2021
EXHIBIT B
Payment Rates and Schedule
Cost for services shall be as per Contractor's proposal attached hereto and incorporated herein as though set forth in full but in no event shall the total cost of services exceed 5950for the total term of the Agreement unless additional payment is approved as provided in the Payment section of this Agreement.
10 08/09/2021
FEHRtPEERS
February 8, 2023
Matt Peters, Senior Planner
City of Temecu la
41000 Main St, Temecula, CA 92590
Subject: Proposal forthe City of Temecula Complete Streets Policy Development
Dear Matt,
Fehr & Peers is pleased to submit this proposal to work with the City of Temecula (the City) in developing a Complete Streets Policy (herein referred to as the "project"). The Fehr & Peers team is well versed in complete streets policy, design, and planning throughout the western United States and our team has worked on transportation related projects in the City of Temecula for many years. We will combine our subject matter experience and local familiarity to craft a city-wide policy representative of the City's values to balance the needs of all travel modes.
This proposal includes a brief discussion of our project understanding followed by our proposed scope of work, staffing plan, fee, and schedule.
Project Understanding
This project will draft a citywide policy for the City of Temecula to ensure transportation infrastructure is designed to enhance safety, accessibility, and mobility for all users. Currently the City's roadway network supports a mostly suburban land use context, but the City is dedicated to reducing congestion and increasing access for all modes of transportation. As a result, the City adopted the Multi -Use Trails and Bikeways Masterplan in 2016 that outlines plans for future trails and bicycle infrastructure. Adoption of a Complete Streets Policy will reinforce the City's commitment to Complete Streets implementation by developing clear and defined values to support balancing the roadway for all modes. There are several benefits to developing a Complete Streets Policy:
• Provides clear and defined goals and values around developing complete streets infrastructure.
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Y O 1 e'i!IeCU1 a C.Of71pti'ti. 5kY"E'i'T.J Poili_,y 7i'r:iOr)Si I • Creates a policy framework and accountability for the implementation of Complete Streets. • Demonstrates the City's commitment to complete streets in grant applications. • Providing complete streets infrastructure has co -benefits such as encouraging active transportation modes that can reduce VMT and help achieve climate action goals. • Will inform the General Plan update.
Specifically, this project will:
• Review existing best practices in Complete Streets Policy. • Develop a complete streets checklist/decision tree that can be used internally to ensure that transportation infrastructure projects (new facilities, upgraded facilities, and maintenance projects) are implementing Complete Streets where practical by considering the feasibility of Complete Streets improvements and ensuring consistency with other planning documents that the City has adopted
• Provide basic mid -block crossing criteria to address requests for crosswalks. • Conduct stakeholder outreach to inform these internal tools and criteria.
The project's scope is below. Ultimately, at the end of the project, the City of Temecula will have a Complete Streets Policy document (appropriate for Council adoption) and checklists/decision tree diagrams that can be used for infrastructure project review.
Scope of Work
Task 1: Project Initiation and Management
Plan and facilitate a Project Kick -Off meeting with the project team to discuss project goals, objectives, schedule, and risks; and strategize effective ways to engage and involve City Staff, City Council Sub - Committee, and Planning Commission Sub -Committee. We anticipate the meeting will be held virtually.
The various project components and anticipated schedule will be confirmed.
DELIVERABLES
• Kickoff Meeting Agenda and materials for all attendees. • Notes summarizing the Kickoff Meeting including list of action items. • Monthly invoices showing the previous month's billing by hours and tasks, percentage of project completion to date by task, a project status report by task, and comments on the project's schedule status.
Task 2: Best Practices Review/City Planning Document Review In this task, Fehr& Peers will research up to three (3) complete street policies (and implementation checklists) from around the nation that are similar in size and context to City of Temecula. We will develop a memo that summarizes our findings and best practices.
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Additionally, we will document the presence of complete streets language, policies, and projects in existing City of Temecula adopted plans and guidelines. The research will provide a matrix that lists all City of Temecula documents that allude to or reference complete streets and will provide a brief summary of the type of reference (whether it is a broad goal, policy, project, guideline, or something else). We anticipate summarizing language contained in documents such as the Multi -use Trails and Bikeways Master Plan (2016), the Specific Plans, the Planned Development Overlay Districts, etc. The purpose of this exercise will be to develop a complete streets policy and implementation checklist that reflects the approach that City staff would like to follow related to the commitment to complete streets, while also identifying opportunities for improvement.
Using the research, we will develop sample complete streets policy language and implementation checklist (that could be used by internal City departments) to ensure that complete streets elements are considered during transportation project implementation/construction.
DELIVERABLES
■ Memo summarizing best practices of up to (3) adopted complete street policies. ■ Brief memo and matrix of Temecula planning documents that allude to or directly address complete streets. The memo will also include some preliminary options for a complete streets checklist/decision tree and sample complete streets policy language.
Task 3: Stakeholder Workshops
Using the findings from Task 2 and our subject matter expertise, Fehr& Peers will host and facilitate up to ten (10) Complete Streets -focused workshops for City Staff, City Council Sub -Committee, Public/Traffic Safety Committee, and Planning Commission Sub -Committee. The meetings will include a combination of staff working group meetings and sub -committee meetings. We anticipate the following meetings will be held:
• Up to four (4) staff working group workshops, which may include, but not limited to the following structure: kick-off meeting, brainstorming meeting, follow-up meeting, and final policy development meeting.
• Up to two (2) workshops each forthe Council Sub -committee, Planning Commission Sub - Committee, and the Public/Traffic Safety Commission.
Workshop discussion topics may include, but not limited to:
■ Introduction to Complete Streets
• Policy Context and need for Complete Streets
■ How to develop and Implement a Complete Streets Policy • Overview of existing Temecula Documents that Address Complete Streets • Sample Complete Streets and Mid -Block Crosswalk Checklists/Decision Trees Fehr& Peers staff will provide the following materials for the meetings: an agenda, a PowerPoint presentation, and meeting summary of outcomes, feedback, and direction received.
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DELIVERABLES
• 4 Workshops with City Staff
■ 2 Workshops with City Council Sub -Committees
■ 2 Workshops with Planning Commission Sub -Committees
■ 2 Workshops with the Public/Traffic Safety Commission • Meeting agenda, PowerPoint presentation, and meeting summary Task 4: Draft Complete Streets Policy
Following the input from Task 3, the team will develop a draft Complete Street Policy that will be available for Staff review. This task will create policies that provide clear direction on the City's multimodal goals and departments responsible for implementing the goals.
In addition, we will refine the sample checklist/decision tree to create a Draft Complete Streets Checklist based on input received during the outreach. The intention of the checklist is that for every transportation project being planned and designed, City staff would complete the checklist to ensure that complete streets were appropriately considered. The checklist could include questions such as: "Is this road included in an existing city document?," "Describe the bicycle and pedestrian facilities planned," and "If bicycle lanes are not included in the project, describe the constraints for including them." Fehr & Peers will also provide mid -block crosswalk criteria to help respond to requests for marked crosswalks in a consistent manner. These guidelines will be a separate desk reference resource for City staff. The criteria will be based on the current Federal Highway Administration research and best practices.
The guidelines will set "rule -of -thumb" criteria forwhen a marked crosswalk is appropriate and what types of measures should be installed (i.e. rapid rectangular flashing beacons, high -visibility crosswalk markings, refuge islands, etc.) based on the roadway characteristics such as speed and vehicular volumes. We also understand that equestrian crossing may be relevant at some crossing locations and this will be considered in the guidelines.
Fehr & Peers will also work with City staff to develop the City Council resolution language forthe Complete Streets Policy that will be presented in the Council packet for adoption.
DELIVERABLES:
• Draft Complete Streets Policy, Implementation Checklist, and Mid -Block Crosswalk Criteria • Revised Complete Streets Policy, Implementation Checklist, and Mid -Block Crosswalk Criteria ■ Final Complete Streets Policy for Council Adoption and Resolution Language Optional Task 5: Additional Meetings and Coordination
Fehr& Peers -will attend up to 6 additional meetings. These meetings could, include team meetings, Council or Planning Commission sub -committee meetings, and/or commission meetings.
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Additional Services
The scope of work has been tailored to meet the specific requirements of this project. However, additional services may be required during execution of the study. Additional services that are beyond the proposed scope of work include, but are not limited to: reviewing additional documents or processing/analyzing additional data in Task 2, analyzing more than (3) Complete Streets Policies, or producing additional draft deliverables in excess of the quantities identified. Fehr& Peers will conduct additional services only upon receipt of written authorization on a mutually agreed upon scope and budget.
Schedule and Fee
Fehr & Peers will complete this scope of work for a lump sum as follows:
Tasks 1-4: $49,500
Optional Task 5: $10,000 (billed based on meeting attendance/requests from City staff) Invoices will be submitted monthly based on percent complete for each task and are due and payable upon receipt.
We will work with you to establish a project schedule and expect the process to span over approximately 6- months.
Contract
We anticipate that you will provide a contract for our review and signature that has language consistent with our previous contracts with the City.
The terms of this proposal are valid for a period of 90 days but the scope, budget, and schedule may need to be modified depending on additional information that is made available prior to project initiation, or if initiation occurs after 90 days.
Please call Katy Cole at (619) 758-3001 if you have any questions. We appreciate the opportunity to ;propose on this project and look forward to working with you.
Sincerely,
FEH R & PEERS
Y�6
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J
Katy Cole,
Principal
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Item No. 8
CITY OF TEMECULA
AGENDA REPORT
TO: City Manager/City Council
FROM: Luke Watson, Deputy City Manager
DATE: April 25, 2023
SUBJECT: Renew the Abandoned Vehicle Abatement Program with the County of Riverside PREPARED BY: Brandon Rabidou, Principal Management Analyst RECOMMENDATION: That the City Council adopt a resolution entitled:
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TEMECULA, AUTHORIZING THE EXTENSION OF THE
SERVICE FEE COLLECTED ON BEHALF OF THE RIVERSIDE
COUNTY ABANDONED VEHICLE ABATEMENT SERVICE
AUTHORITY UNTIL MAY 2034
BACKGROUND: In 1990, the California State Legislature enacted legislation allowing for the creation of a County based vehicle service authority, pursuant to the provisions of Section 22710 of the Vehicle Code. In June 1994, the Riverside County Abandoned Vehicle Abatement Service Authority was formed and imposed a one dollar annual vehicle registration fee on vehicles registered to an owner with an address within the County of Riverside.
Vehicle registration fees are collected by the Department of Motor Vehicles and allocated to Riverside Abandoned Vehicle Service Authority by the State Controller pursuant to Section 9250. 7 of the Vehicle Code. Fees are then allocated to participating cities within Riverside County and in unincorporated Riverside County on the basis of the size and the population in each jurisdiction.
On February 12, 2013, the City Council adopted a resolution extending the service fee collection on behalf of the County of Riverside Abandoned Vehicle Abatement Service Authority. The current program is set to expire in May 2024. Legislation allows local service authorities to extend the programs every ten years with the approval of the County and the majority of the cities comprising a majority of the population in the incorporated areas. Adoption of the attached resolution is the first step toward the extension of this program. This resolution would extend the program until May 2034.
FISCAL IMPACT:
Abatement account.
A continuation of funds to be deposited the Abandoned Vehicle ATTACHMENTS: Resolution
RESOLUTION NO.2023-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF TEMECULA, AUTHORIZING THE EXTENSION OF
THE SERVICE FEE COLLECTED ON BEHALF OF THE
RIVERSIDE COUNTY ABANDONED VEHICLE
ABATEMENT SERVICE AUTHORITY UNTIL MAY 2034
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. The City Council of the City of Temecula does hereby find, determine, and declare that:
A. The Riverside County Abandoned Vehicle Abatement Service Authority was formed on or about June 1, 1994, pursuant to the provisions of California Vehicle Code §§ 9950.7 and 22710 enacted by the Legislature in 1990 which authorize the establishment of a service authority and imposition of a service fee on all registered motor vehicles located within a county.
B. Beginning in June 1994 and continuing to the present, the Riverside County Abandoned Vehicle Abatement Service Authority has been the recipient of service fees collected on its behalf by the California Department of Motor Vehicles.
C. The service fees received by the Riverside County Abandoned Vehicle Abatement Service Authority are used to reimburse local governmental agencies for a portion of their costs incurred as a result of the abatement, removal and disposal as public nuisances of any abandoned, wrecked, dismantled, or inoperative vehicles or parts thereof.
D. The Riverside County Abandoned Vehicle Abatement Service Authority apportions and distributes service fee proceeds to each member agency according to the formula set forth in California Vehicle Code §§ 22710.
E. Since the establishment of the Abandoned Vehicle Abatement program in June 1994, it has disbursed $22,952,216 in service fee proceeds to member agencies and caused the abatement of approximately 146,561 abandoned, wrecked, dismantled, or inoperative vehicles located in various cities and the unincorporated area of Riverside County.
F. The service fee collected as part of the Abandoned Vehicle Abatement Service Authority program is set to expire in May 2024.
G. The Legislature recently amended California Vehicle Code § 9250.7 to allow for an extension of the service fee collected as part of the Abandoned Vehicle Abatement program in increments of up to 10 years each if the board of supervisors of the county, by a two-thirds vote, and a majority of the cities comprising a majority of the population of the incorporated areas within the county adopt resolutions providing for the extension of the service fee.
H. It is desirable to the City of Temecula to have the Abandoned Vehicle Abatement program continue beyond its current termination date of May 2024.
Section 2. The City Council of the City of Temecula, California approves the extension of the service fee collected on behalf of the Riverside County Abandoned Vehicle Abatement Service Authority until May 14, 2034.
Section 3. The City Clerk shall certify the adoption of this resolution.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 25th day of April, 2023.
ATTEST:
Randi Johl, City Clerk
[SEAL]
Zak Schwank, Mayor
FA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 2023- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 251h day of April, 2023, by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
Randi Johl, City Clerk
Item No. 9
CITY OF TEMECULA
AGENDA REPORT
TO: City Manager/City Council
FROM: John Crater, Fire Chief
DATE: April 25, 2023
SUBJECT: Adopt the 2023 City of Temecula Emergency Operations Plan PREPARED BY: Mikel Alford, Emergency Manager
RECOMMENDATION: That the City Council adopt this resolution entitled:
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TEMECULA ADOPTING THE 2023 CITY OF TEMECULA
EMERGENCY OPERATIONS PLAN
BACKGROUND: The preservation of life, property and the environment are an inherent function of our local government. The 2023 Emergency Operations Plan has been completely rewritten by the City of Temecula's Office of Emergency Management and is consistent with Standardized Emergency Management System (SEMS) and / the National Incident Management System (NIMS). This Emergency Operations Plan (EOP) provides guidance for the City of Temecula's response to extraordinary emergency situations associated with natural, man- made and technological disasters.
This plan does not address ordinary day-to-day emergencies or the established routing procedures used to cope with such incidents. Rather, this plan concentrates on operational concepts and response procedures relative to large-scale emergencies and disasters. While no plan can completely prevent death and destruction, good plans carried out by knowledgeable and well - trained personnel can and will minimize losses. This plan establishes the emergency organization, assigns tasks, specifies polices and general procedures, and provides for the coordination of planning efforts of the various emergency staff and service elements.
The City of Temecula has prepared this Emergency Operations Plan (EOP) to ensure the most effective allocation of resources for the protection of people and property in time of an emergency with the primary objective of this plan being the ability to incorporate and coordinate all facilities and personnel of the city staff into an efficient organization capable of responding effectively to any emergency.
FISCAL IMPACT: None
ATTACHMENTS: 1. Resolution
2. 2023 City of Temecula Emergency Operations Plan (EOP)
RESOLUTION NO. 2023-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF TEMECULA ADOPTING THE 2023 CITY OF
TEMECULA EMERGENCY OPERATIONS PLAN
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS:
WHEREAS, the City of Temecula may be subjected to emergencies and disasters of all types; and
WHEREAS, the City of Temecula will continue to be prepared to respond during emergencies and disasters to protect public peace, health and safety and to preserve lives and property of the people; and
WHEREAS, the City of Temecula will plan and prepare in order to implement efficient emergency operations and to mitigate the effects of emergencies and disasters; and WHEREAS, such planning and operations have been a coordinated effort of local departments and agencies; and
WHEREAS, the City of Temecula will coordinate emergency prevention, mitigation, preparedness, response and recovery activities in a manner consistent with the Standardized Emergency Management System (SEMS) and, by extension, National Incident Management System (NIMS); and
WHEREAS, City of Temecula has developed a comprehensive Emergency Operations Plan in compliance with the requirements of the California Governor's Office of Emergency Services (Cal OES) and the Federal Emergency Management Agency (FEMA).
WHEREAS, The City of Temecula has determined that it would be in the best interest of the City of Temecula to adopt the 2023 City of Temecula Emergency Operations Plan.
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. The City Council adopts the 2023 City of Temecula Emergency Operations Plan, which is on file with the Office of the City Clerk.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 25th day of April, 2023.
Zak Schwank, Mayor
ATTEST:
Randi Johl, City Clerk
[SEAL]
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 2023- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 25th day of April, 2023, by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
Randi Johl, City Clerk
1989
City of Temecula
EMERGENCY OPERATIONS PLAN
2023
EMERGENCY OPERATIONS PLAN - 2023
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EMERGENCY OPERATIONS PLAN - 2023
TABLE OF CONTENTS
PART 1: BASIC PLAN
ACKNOWLEDGEMENTS................................................................................................................... 1 FOREWARD........................................................................................................................................... 2 APPROVAL AND PROMULGATION...................................................................................................... 3 LETTER OF PROMULGATION............................................................................................................... 4 MAINTENANCE OF EOP........................................................................................................................ 5 DISTRIBUTION LIST.............................................................................................................................. 6 RECORD OF REVISIONS........................................................................................................................ 7 DEPARTMENT / AGENCY CONCURRENCE........................................................................................ 8 PURPOSE AND SCOPE..................................................................................................................... 9 SITUATION AND ASSUMPTIONS................................................................................................... 10 ADA Considerations for Local Government............................................................................ 14 CONCEPT OF OPERATIONS............................................................................................................ 17 PreventionPhase........................................................................................................................ 17 PreparednessPhase.................................................................................................................. 17 Increased Readiness......................................................................................................... 18 Training and Exercising.................................................................................................... 18 PlanningScenarios............................................................................................................ 19 Typesof Exercises............................................................................................................. 19 Public Awareness and Education.................................................................................... 20 Disaster Animal Care Considerations............................................................................ 21 ResponsePhase..................................................................................................................... 21 InitialResponse.................................................................................................................. 22 ExtendedResponse........................................................................................................... 22 Alert& Warning................................................................................................................. 23 RecoveryPhase...................................................................................................................... 24 ShortTerm Recovery........................................................................................................ 24 LongTerm Recovery......................................................................................................... 24 Damage Assessment........................................................................................................ 24 AfterAction Reporting..................................................................................................... 25 CITY OF TEMECULA iii j P age
EMERGENCY OPERATIONS PLAN - 2023
Disaster Assistance Programs........................................................................................ 25 LocalAssistance Center................................................................................................... 26 MitigationPhase................................................................................................................... 27 WHOLE COMMUNITY PLANNING................................................................................................ 28 CONTINUITY OF GOVERNMENT................................................................................................... 35 Preservation of Local Government.......................................................................................... 35 Lines of Succession for Official Charged with Discharging Emergency Responsibilities .. 35 City Council Lines of Succession............................................................................................... 35 Departmental Lines of Succession........................................................................................... 37 EOCLines of Succession............................................................................................................ 38 Essential Facilities: Seat of Government................................................................................ 38 Essential Facilities: Emergency Operations Center............................................................... 39 Preservation of Vital Records................................................................................................... 40 STANDARDIZED EMERGENCY MANAGEMENT SYSTEM (SEMS)............................................... 43 Incident Command System (ICS).............................................................................................. 43 MutualAid System..................................................................................................................... 45 Multi -Agency Coordination System (MACS)........................................................................... 45 Operational Area (OA) Concept................................................................................................ 46 FiveLevels of SEMS..................................................................................................................... 46 National Incident Management System (NIMS)..................................................................... 51 SEMS REQUIREMENTS FOR LOCAL GOVERNMENTS.............................................................. 51 CITY OF TEMECULA'S RESPONSIBILITIES UNDER SEMS......................................................... 51 CITY OF TEMECULA EMERGENCY MANAGEMENT ORGANIZATION ......................................... 53 SEMSEOC Functions................................................................................................................... 53 EOCPolicy Group........................................................................................................................ 54 EOCActivation Policies.............................................................................................................. 55 EOCHours of Operation............................................................................................................ 56 EOCCoordination....................................................................................................................... 57 EOCInformation Tracking......................................................................................................... 58 Displays................................................................................................................................... 58 EOC Joint Information Center................................................................................................... 58 CITY OF TEMECULA ivj Page
EMERGENCY OPERATIONS PLAN - 2023
MUTUALAID.................................................................................................................................. 59 MutualAid Agreements............................................................................................................ 59 InterstateMutual Aid................................................................................................................ 59 Progressive Mobilization.......................................................................................................... 59 Mutual Aid Coordination.......................................................................................................... 60 MutualAid Regions................................................................................................................... 61 MutualAid Facilities.................................................................................................................. 62 ResourceTracking...................................................................................................................... 62 EMERGENCY DECLARATIONS....................................................................................................... 63 LocalDeclaration........................................................................................................................ 63 Stateof Emergency.................................................................................................................... 63 Stateof War Emergency............................................................................................................ 64 Presidential Declaration............................................................................................................. 65 EMERGENCY COMMUNICATIONS................................................................................................. 67 Emergency Operations Center Communications................................................................... 67 800-Megahertz Radio System................................................................................................... 67 Satellite Telephone System....................................................................................................... 67 AmateurRadio............................................................................................................................ 68 DisasterNet Radio...................................................................................................................... 68 Mobile Radio Communications................................................................................................ 68 HAZARD MITIGATION AND ANALYSIS......................................................................................... 69 Local Government Responsibilities......................................................................................... 69 Local Multi -Hazard Mitigation Plan......................................................................................... 69 Hazard Mitigation Grant Program (HMGP)............................................................................ 70 HazardAnalysis........................................................................................................................... 71 CITY OF TEMECULA THREAT SUMMARY..................................................................................... 73 CityOverview.............................................................................................................................. 73 Infrastructure and Facilities...................................................................................................... 74 Business, Recreation and Services........................................................................................... 74 NotificationSystems.................................................................................................................. 75 Incident Consequences............................................................................................................. 75 CITY OF TEMECULA vj P a g e
EMERGENCY OPERATIONS PLAN - 2023
THREAT ASSESSMENT 1: MAJOR EARTHQUAKES................................................................... 77 Typesof Faults....................................................................................................................... 77 EarthquakeStrength............................................................................................................. 78 CaliforniaEarthquakes.......................................................................................................... 81 Liquefaction............................................................................................................................ 81 ExpectedDamage.................................................................................................................. 82 THREAT ASSESSMENT 2: HAZARDOUS MATERIALS............................................................... 85 TransportationAccidents..................................................................................................... 85 IllegalDumping...................................................................................................................... 85 THREAT ASSESSMENT 3: WILDFIRE.......................................................................................... 86 THREAT ASSESSMENT 4: FLOODING........................................................................................ 87 THREAT ASSESSMENT 5: DAM FAILURE.................................................................................. 89 VailLake Dam........................................................................................................................ 89 SkinnerLake Dam................................................................................................................. 92 DiamondValley Lake............................................................................................................ 94 Diamond Valley Lake Dam (South)..................................................................................... 95 Diamond Valley Lake Dam (West)...................................................................................... 95 THREAT ASSESSMENT 6: TRANSPORTATION EMERGENCIES ............................................... 96 TruckingIncident.................................................................................................................. 96 MajorAirplane Accident...................................................................................................... 98 THREAT ASSESSMENT 7: CIVIL UNREST.................................................................................. 99 THREAT ASSESSMENT 8: POWER OUTAGE........................................................................... 100
CaliforniaISO....................................................................................................................... 100
CAL ISO Rolling Blackouts................................................................................................... 100
Public Safety Power Shutoffs............................................................................................. 101
THREAT ASSESSMENT 9: TERRORISM.................................................................................... 102
Homeland Security Presidential Policy Directive 3......................................................... 102
National Terrorism Alert System (NTAS).......................................................................... 103
Announcing Threat Conditions.......................................................................................... 103
THREAT ASSESSMENT 10: PUBLIC HEALTH EMERGENCY .................................................... 104
Strategic National Stockpile............................................................................................... 104
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EMERGENCY OPERATIONS PLAN - 2023
COVID-19............................................................................................................................... 105
THREAT ASSESSMENT 11: NUCLEAR...................................................................................... 107
NuclearPower Plants.......................................................................................................... 107
NuclearWeapon.................................................................................................................. 109
DirtyBomb............................................................................................................................ 110
NuclearWaste...................................................................................................................... 111
AUTHORITIES AND REFERENCES................................................................................................. 113
AUTHORITIES................................................................................................................................. 113
LocaI....................................................................................................................................... 113
State....................................................................................................................................... 113
Federal................................................................................................................................... 114
REFERENCES................................................................................................................................... 114
APPENDICES................................................................................................................................... 117
Appendix A - Glossary of Terms.............................................................................................. 117
Appendix B - List of Acronyms................................................................................................. 119
LIST OF FIGURES............................................................................................................................ 121
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EMERGENCY OPERATIONS PLAN - 2023
These documents are published separately in support of the Emergency Operations Plan and are for internal use only due to the sensitive nature of their use. They include, but are not limited to:
Appendix C - Essential Contacts
Appendix E - EOC Locations — Primary and Alternate
Appendix F - City of Temecula — Public and Private Schools Appendix G - Critical Locations within Temecula
Appendix H - Vital Records Storage
SUPPORT PLANS
These documents are published separately in support of the Emergency Operations Plan and are for internal use only. They include, but are not limited to:
Support Plan 1: PSPS and Power Disruption Plan
Support Plan 2: Rapid Needs Assessment
Support Plan 3: Medication Point of Dispensing Plan
Support Plan 4: Alert & Warning Plan
Support Plan 5: City of Temecula Active Assailant Response Plan Support Plan 6: City Facility Evacuation Plan
Support Plan 7: City of Temecula Mass Care & Shelter Plan CITY OF TEMECULA viii j P age
EMERGENCY OPERATIONS PLAN - 2023
ACKNOWLEDGEMENTS / CREDITS
The information and processes included in this plan are intended to improve the emergency preparedness, response, recovery, and mitigation efforts of the City of Temecula and to satisfy the Standardized Emergency Management System (SEMS) requirements as presented in Title 19 of the California Code of Regulations and the National Incident Management System (NIMS) requirements as outlined in Homeland Security Presidential Directive — 5 (HSPD-5).
This plan was prepared and edited by Mikel Alford, Emergency Manager with the City of Temecula with input and support from the City of Temecula's Emergency Management Committee. The committee membership committed significant time and effort to create a plan, which integrates SEMS requirements while meeting FEMA's planning guidance requirements along with the concepts and principles set forth by NIMS. These documents were prepared, reviewed, and finalized by the City of Temecula Emergency Management Committee members including:
Emergency Management Committee
AgencyDepartmentA•Department
City Manager's Office
Betsy Lowrey
City Clerk
Lanny Krage
Human Resources
Courtney Fletcher
Finance Department
Tina Rivera
Information Technology
Oscar Lopez
Community Services
Jeff Lawrence
I
Fire Department
Capt. Matt Hayes
Sheriff's Department
Dep. J. Kenitzer
Fire Department
Wendy Miller
Facilities
Ryan Mode
Building & Safety
Brian Clements
Facility Operations Center
Rodney Tidwell
Public Works
Ron Moreno
Temecula Community Center
Rishann Clermont
Community Rec Center
Gwen Willcox
Mary Phillips Senior Center
Yvette Martinez
Jefferson Rec Center
Tracy Masters
Old Town Community Theatre
John Deards
Temecula Valley Museum
Trach Frick
TVE2
Christine Damko
Community Development
Brandon Rabidou
City Management
✓ Aaron Adams, City Manager
✓ Kevin Hawkins, Assistant City Manager
✓ Luke Watson, Deputy City Manager
Temecula City Council
✓ Zak Schwank, Mayor
✓ James "Stew" Stewart, Mayor Pro-Tem
✓ Jessica Alexander
✓ Curtis Brown
✓ Brendan Kalfus
CITY OF TEMECULA 11 P a g e
EMERGENCY OPERATIONS PLAN - 2023
FOREWARD
This Emergency Operations Plan (EOP) provides guidance for the City of Temecula's response to extraordinary emergency situations associated with natural, man-made and technological disasters. This plan does not address ordinary day-to-day emergencies or the established routing procedures used to cope with such incidents. Rather, this plan concentrates on operational concepts and response procedures relative to large-scale emergencies and disasters.
The EOP is a preparedness document and is designed to be read, understood, and exercised prior to an emergency. The EOP has been developed in accordance with the Standardized Emergency Management System (SEMS) and the National Incident Management System (NIMS).
City departments are responsible for assuring the preparation and maintenance of Standard Operating Procedures (SOPS), resource lists and checklists that detail how assigned responsibilities are performed and to ensure that they support the implementation of the EOP.
These are published separately and for internal use only.
There are three parts to the City of Temecula Emergency Operations Plan. Part One is the basic plan which describes our concept of operations; continuity of government; utilization of the Standardized Emergency Management System (SEMS) and the National Incident Management System (NIMS); emergency operations center; mutual aid; emergency declarations; emergency communications; hazard mitigation; hazard analysis; and threat assessments.
Part Two is published separately and includes our support plans for alert and warning; mass care and shelter; donations management; volunteer management; evacuations; damage assessment; and recovery.
Part Three is published separately for internal use only and includes our EOC Activation and Leadership Guide, EOC SOPS and supporting documents, forms, and checklists. They are intended to be used in conjunction with this plan.
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EMERGENCY OPERATIONS PLAN - 2023
PROMULGATION
INSERT RESOLUTION
CITY OF TEMECULA 31 Page
EMERGENCY OPERATIONS PLAN - 2023
CITY OF TEMECULA
EMERGENCY OPERATIONS PLAN
LETTER OF PROMULGATION
To: Officials, Employees, and Citizens of the City of Temecula, California The preservation of life, property and the environment are an inherent function of local, state, and the federal government. The City of Temecula, California has prepared this Emergency Operations Plan (EOP) to ensure the most effective allocation of resources for protection of people and property in time of an emergency.
While no plan can completely prevent death and destruction, good plans carried out by knowledgeable and well -trained personnel can and will minimize losses. This plan establishes the emergency organization, assigns tasks, specifies polices and general procedures, and provides for the coordination of planning efforts of the various emergency staff and service elements utilizing the Standardized Emergency Management System (SEMS) and, by extension, the National Incident Management System (NIMS).
The objective of this plan is to incorporate and coordinate all facilities and personnel of the city staff into an efficient organization capable of responding effectively to any emergency. This EOP is an extension of the State Emergency Plan. It will be reviewed and exercised periodically and revised as necessary to meet changing conditions.
The City of Temecula gives its full support to this plan and urges all officials, employees, and the citizens; individually and collectively, to do their parts in the total emergency effort of the city.
This Emergency Operations Plan has been completely rewritten by the City of Temecula's Office of Emergency Management and is consistent with SEMS/NIMS. The EOP becomes effective upon approval by the Temecula City Council.
Aaron Adams
City Manager
Signed:
Date:
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EMERGENCY OPERATIONS PLAN - 2023
MAINTENANCE OF EMERGENCY OPERATIONS PLAN
The City's Emergency Manager is responsible for writing, reviewing, and updating this Emergency Operations Plan on an annual basis with a complete rewrite every three years. Modification to this plan include new information such as the changing of phone numbers and revisions of relevant standard operating procedures or organizational structure. Additionally, modifications may occur as a result of lessons learned from incident or exercise critiques requiring changes to responsibilities, laws, or regulations. A record of changes and revisions will be maintained. All changes to the plan will be distributed as shown on the plan distribution list. Revisions to the plan will be approved by the City of Temecula.
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EMERGENCY OPERATIONS PLAN - 2023
DISTRIBUTION LIST
The City of Temecula's OEM prepares, coordinates, publishes, and distributes this Plan and any revisions made to it. The Plan is distributed to all departments/agencies identified below. The Plan is also available upon request by external organizations, also identified below.
CITY DEPARTMENTS
COUNTY GOVERNMENT/
OTHER ORGANIZATIONS
SPECIAL DISTRICTS
City Council Members
Riverside County Emergency
Governor's Office of
Management Department
Emergency Services (CaIOES)
City Manager's Office
Temecula Valley Unified
Temecula Valley Hospital
School District
Emergency Operations
Riverside County Sheriff's
Pechanga Tribal Emergency
Center Personnel
Department, Southwest
Manager
Station
Office of Emergency
Rancho Water District
Management Website
Temecula Fire Department
Eastern Municipal Water
(Riverside County / CAL Fire)
District
Community Services Dept.
Public Works Department
Human Resources / Risk
Management Department
Community Development
Department
Finance Department
Information Technology &
Support Services Department
City Clerk's Office
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EMERGENCY OPERATIONS PLAN - 2023
RECORD OF REVISIONS
Any approved additions or modifications to this plan will be documented and noted in this section. The date of the change, the title of the person making the change, and a summary and reason for the modifications will be inserted into this section of the plan. If any major or significant changes to this plan need to be made, then the revised plan will be considered an update and the cover page, promulgation page, and approval and implementation page should reflect that it is a new plan.
After any modification to this plan, OEM will ensure that the updated version is distributed to all previously listed departments and agencies, and that the revised plan is uploaded to any share sites and/or webpages where this plan resides. Personnel with a role in executive leadership, coordination and management, and operational implementation of emergency procedures are encouraged to keep a digital and/or printed copy of this plan and to make sure it is always accessible to them.
CHANGE
1 DATE
CHANGENUMBER
OF
PAGE
/
•
SUMMARY
OF
2 3
4 5
6 7
8 9
10 11
12 CITY OF TEMECULA 71 Page
EMERGENCY OPERATIONS PLAN - 2023
CITY OF TEMECULA DEPARTMENT CONCURRENCE
Erica Russo
Director, Community Services
Date
Patrick Thomas Date
Director, Public Works/City Engineer
Isaac Garibay Date
Director, Human Resources & Risk Management
Luke Watson Date
Deputy City Manager
Jennifer Hennessy
Date
Director, Finance
Michael Heslin
Date
Director, Information Technology & Support Services
Randi Johl
Date
Director, Legislative Affairs / City Clerk
Chief John Crater
Date
Division Chief
CAL Fire / Riverside County Fire Dept.
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Captain Christapher Durham Date
Riverside County Sheriff's Department
Kevin Hawkins Date
Assistant City Manager
Aaron Adams Date
City Manager
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PURPOSE AND SCOPE
Purpose
The purpose of the City of Temecula Emergency Operations Plan (EOP) is to establish a comprehensive, all -hazards approach for responding to natural, man-made and technological disasters that affect the city. This plan provides an overview of the operational concepts; identifies the components of the City's Emergency Management Organization; Standardized Emergency Management System (SEMS) coordination; Mutual Aid; and describes overall responsibilities of federal, state, and local agencies.
The Emergency Operations Plan has been designed to serve the growing needs of the City of Temecula. As population and infrastructure continues to increase and with it, vulnerability to hazards, it's important that the EOP be flexible enough to use in all emergencies. This plan not only meets that need but will increase the effectiveness and efficiency of the community's response and short-term recovery activities.
The plan establishes a system for coordinating the five (5) pillars of Emergency Management across the full spectrum of operations. This plan defines the framework for how the prevention, preparedness, response, recovery, and mitigation phases of emergency management are to be executed in Temecula. The EOP is intended to be an overview of emergency management and response concepts; it is not intended to be a detailed operational document. Detailed Standard Operating Procedures (SOPS), checklists, and support plans are distributed to Emergency Operations staff separately and are for internal use only.
Scope
The City of Temecula Emergency Operations Plan discusses a broad range of large-scale emergencies and disasters that have the potential for impacting the City of Temecula and are derived from the previous and current threat assessment and planning process. They include:
Catastrophic Earthquakes
Wildfires
Local Dam Failure
Civil Unrest
Public Health Emergencies
Terrorism
Hazardous Materials Incidents
Flooding
Transportation Emergencies
Power Disruption
Nuclear Incidents
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SITUATION AND ASSUMPTIONS
The City of Temecula is nestled within the
southwestern portion of Riverside County
sharing a border with San Diego County.
Temecula is approximately 58 miles north
of downtown San Diego, and 68 miles west
of Palm Springs. It is surrounded by the City
of Murrieta to the north, Temecula Wine
Country to the east, the unincorporated
areas of DeLuz to the west, as well as the
Pechanga Indian Reservation to the south
and encompasses 30 square miles with an
elevation of 1,017 feet above sea level.
According to the World Population Review, the population of Temecula is 115,202 as of 2022.
Temecula is the fifth largest city in Riverside County withy a wide range of housing options:
affordable single-family homes, condominiums and ranch style homes, family -oriented lifestyle, good schools, and quality -of -life amenities. Supported by high median and mean income levels, the city is a prominent tourist destination, with the Temecula Valley Wine Country, Old Town Temecula, the Temecula Valley Balloon & Wine Festival, the Temecula Valley International Film Festival, championship golf courses, and resort accommodations attracting a significant number of tourists which appreciably contributes to the city's economic profile. In addition to the tourism sector, the educational, leisure, professional, finance, and retail sectors contribute to the city's overall economy.
Temecula is bifurcated by one major freeway, Interstate 1S (1-15), and connects directly to downtown San Diego and the regional highway system to the south. Interstate 15 forks on the northern end of the city into Interstate 15 and Interstate 215. To the northwest, I -IS connects to Lake Elsinore and Corona. To the northeast, 1-215 connects to Menifee, Perris, Moreno Valley and beyond. Interstates 21S and 15 are an important north -south link from San Diego through western Riverside and San Bernardino counties.
The City of Temecula is vulnerable to effects of natural disasters such as earthquakes, floods, fires, and winter storms. Temecula is also vulnerable to a variety of man-made hazards such as hazardous materials accidents/incidents, terrorism, nuclear incidents, dam failures, transportation, and public health emergencies.
The following assumptions apply to this plan:
1. A major emergency or disaster may cause numerous injuries, property loss, disruption of normal life-support systems, and may have an impact on economic, physical, and social infrastructures.
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EMERGENCY OPERATIONS PLAN - 2023
2. A major emergency or disaster may overwhelm the capabilities of the City of Temecula to provide prompt and effective emergency response and recovery. Mutual aid will be requested when disaster relief requirements exceed the City's ability to meet them.
3. Transportation infrastructure may be damaged or disrupted. Emergency responders may have difficulty reaching people and evacuation routes may cause traffic backups slowing egress from damaged areas. The movement of emergency supplies and services may be impeded.
4. Communication infrastructure maybe damaged or disrupted, thus slowing dissemination of information, and reporting of persons needing assistance.
5. Homes, businesses, public buildings, antennae sites, and other critical facilities may be damaged or destroyed. Public utilities may be damaged and either completely or partially inoperable.
6. Emergency medical services and transport ambulances maybe in short supply and unable to respond. Medical and health care facilities that do remain open may be overwhelmed with medical care requests. Additionally, medicines may be in short supply.
7. Damage to facilities that use hazardous or toxic chemicals could result in the release of these hazardous materials into the environment.
8. Businesses in Temecula may not be able to supply the public with necessities such as food, water, blankets, etc. Additionally, businesses may have difficulty remaining open or providing paychecks to their employees.
9. Volunteers may come from other areas to help, causing problems with accountability.
Donated goods that are not presently needed may be dropped off.
10. Effective emergency operations require periodic training and exercising.
11. City of Temecula emergency personnel and disaster service workers (DSW) will utilize the Standardized Emergency Management System (SEMS) and the National Incident Management System (NIMS).
ADA Considerations for Local Government
Emergency preparedness and response programs must be made accessible to people with disabilities or access and functional needs and is required by the Americans with Disabilities Act of 1990 (ADA). Disabilities would include but not be limited to mobility, vision, hearing, cognitive disorders, mental illnesses, and language barriers.
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Included in the City's planning efforts for those with disabilities are:
• Notification and warning procedures
• Evacuation considerations
• Emergency transportation issues
• Sheltering requirements
• Accessibility to medications, refrigeration, and back-up power • Accessibility to mobility devices or service animals while in transit or at a shelter • Accessibility to information.
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CONCEPT OF OPERATIONS
Emergency management activities during peacetime and national security emergencies are often associated with the one of the five federal emergency management phases, however, not every disaster necessarily includes all indicated phases within the cycle. The Emergency Operations Plan addresses major incidents as well as large-scale disasters, such as an earthquake or nuclear detonation. Some emergencies will be preceded by a warning period, providing sufficient time to warn the public and reduce the loss of life, property damage, and effects on the environment.
Other emergencies occur with little or no warning, thus requiring immediate activation of the Emergency Operations Plan.
DISASTER
f
Disaster
Management
Preparation Cycle Response
After Event
Before Event
The process of emergency
management involves five phases.
They are:
✓ Prevention & Preparedness
✓ Preparedness
✓ Response
✓ Recovery, and
✓ Mitigation.
0 � All City departments and
Mitigation Recovery Emergency Operations staff must
Figure 1: Disaster Management Cycle be prepared to respond to any foreseeable emergency promptly and effectively, taking all appropriate actions.
Prevention Phase
The prevention phase includes actions taken to avoid an incident or to intervene and stop and incident from occurring. This involves actions taken to protect lives and property. It also involves applying intelligence and other information to a range of activities that may include such countermeasures as:
• Deterrence operations
• Heightened inspections
• Improved surveillance, and
• Interconnections of health and disease prevention among people, domestic animals, and wildlife.
Preparedness Phase
The preparedness phase involves activities taken in advance of an emergency. These activities develop operational capabilities and effective responses to a disaster. These actions and activities help to develop the City of Temecula's capabilities and effectiveness to respond to a disaster. The emphasis is on, and may include, mitigation activities, emergency/disaster planning, training and exercises and public education. Emergency planning includes the development of processes and CITY OF TEMECULA 171 Page
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procedures detailing personnel assignments, checklists, resource lists, notification rosters, and support plans. In the event of an emergency, these plans, policies, and procedures are to be used as a checklist by those who are trained to work a designated position as well as those who are not familiar with a particular emergency operations center (EOC) position. All emergency operations staff should become acquainted with SOPs, policies, notification rosters, and resource lists which are distributed to employees separately.
Increased Readiness
Increased readiness actions will be initiated by the receipt of a warning or the observation that an emergency is imminent or likely to occur soon. Events that may trigger increased readiness activities include:
• Issuance of a credible long-term earthquake prediction • Receipt of a flood advisory or other special weather statement • Receipt of a potential dam failure advisory
• Conditions conducive to wildfires, such as the combination of high heat, strong winds, and low humidity
• An expansive hazardous materials incident
• A rapidly deteriorating international situation that could lead to an attack upon the United States, and
• Information or circumstances indicating the potential for acts of violence, terrorism, or civil disturbance.
Examples of increased readiness actions and/or activities to be accomplished include, but are not necessarily limited to:
• Briefing of City Manager and key officials or employees on the situation • Activate the Emergency Operations Center to a Level 3 or Management Watch • Reviewing of the City of Temecula Emergency Operations Plan and associated Support Plans
• Increasing public information and training efforts
• Inspecting critical facilities and equipment, including testing warning and communication systems
• Recruiting additional staff and Disaster Service Workers (DSWs) • Warning threatened elements of the population
• Conducting precautionary evacuations in the potentially impacted area(s) and • Mobilizing personnel and pre -positioning resources and equipment.
Training and Exercises
Training and exercising are essential at all levels of government to make emergency operations personnel operationally ready to respond at a moments notice. The objective is to train and educate public officials, emergency/disaster response personnel and volunteers. The City's Office of Emergency Management (OEM) will conduct regular training and exercising of the city staff in CITY OF TEMECULA 181 Page
EMERGENCY OPERATIONS PLAN - 2023
the use of this plan and all support documents. OEM will conduct other specific training as required for compliance with both SEMS and NIMS. OEM is responsible for coordinating, scheduling, and documenting the training and exercises. Training includes classroom instruction and drills. All staff who may participate in emergency response in the EOC or at the field level must receive appropriate SEMS/NIMS/ICS training.
Planning Scenarios
In November of 2003, the Homeland Security Council (HSC) and the Department of Homeland Security (DHS) convened an interagency scenario working group with the objective of developing a minimum number of representative scenarios to test the range of required prevention, protection, response, and recovery resources. In total there are fifteen (15) all -hazards planning scenarios. Twelve (12) represent terrorist attacks, three represent natural disasters or naturally occurring epidemics. These scenarios were developed for use in national, federal, state, and local homeland security preparedness activities. The City of Temecula will consider these planning scenarios when planning and conducting exercises. The scenarios are:
1. Nuclear Detonation — Improvised Nuclear Device
2. Biological Attack - Aerosol Anthrax
3. Biological Disease Outbreak - Pandemic Influenza
4. Biological Attack - Plague
5. Chemical Attack - Blister Agent
6. Chemical Attack - Toxic Industrial Chemicals
7. Chemical Attack - Nerve Agent
8. Chemical Attack - Chlorine Tank Explosion
9. Natural Disaster — Major Earthquake
10. Natural Disaster — Major Hurricane
11. Radiological Attack - Radiological Dispersal Devices
12. Explosives Attack - Bombing Using Improvised Bomb Device
13. Biological Attack— Food Contamination
14. Biological Attack— Foreign Animal Disease
15. Cyber Attack
Types of Exercises
Regular exercises are necessary to maintain the readiness of emergency personnel. Exercises provide personnel with an opportunity to become thoroughly familiar with the procedures, facilities and systems that will be utilized in a disaster. Annual and frequent exercises are required by both SEMS and NIMS. There are several forms of exercises:
• Tabletop Exercises (TTX) are designed to evaluate policy, plans and procedures and resolve coordination and responsibilities. Such exercises are a good way to see if policies and procedures exist to handle certain issues.
• Functional Exercises (FE) usually take place in the EOC and simulate an emergency in the most realistic manner possible, without field activities. They are used to test or evaluate CITY OF TEMECULA 191 Page
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the capabilities of one or more functions, such as evacuation, communications, public information, or overall city response.
• Full -Scale Exercises (FSE) simulate an actual emergency, typically involving personnel in both the field and EOC levels and are designed to evaluate operational capabilities.
The Office of Emergency Management
utilizes the Homeland Security
Exercise Evaluation Program (HSEEP)
building block approach in the
development of its exercise program.
Exercises are planned in a cycle that
increases in complexity to train and
strengthen EOC personnel to specific
target capabilities.
City of Temecula TTX (Wildfire) Shake Out Evacuation Drill 13 June 2021 October 2021
Public Awareness and Education
The public's response to any emergency is based on an understanding of the nature of the emergency, the potential hazards, the likely response of emergency services and knowledge of what individuals and groups should do to increase their chances of survival and recovery.
Pre -disaster awareness and education programs must be viewed as equal in importance to all other preparation for emergencies and receive an adequate level of planning. The City of Temecula places public disaster education in the highest category by providing citizens emergency training such as the Federal Emergency Management Agency's (FEMA) Community Emergency Response Team (CERT) training, emergency preparedness workshops, disaster presentations for schools, cardiopulmonary resuscitation (CPR), stop the bleed, and first aid, HAM radio classes and terrorism awareness training. In addition to the public awareness and training programs offered, OEM provides preparedness outreach at several events throughout the year.
The City of Temecula also has several emergency volunteer programs in which the citizens of Temecula may participate. A few examples are:
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Temecula Citizen Corps (TCC) Firefighter
Rehab/Incident Response — The TCC Rehab /
Incident Response team consists of - -
professionally trained, multi -level volunteer
emergency personnel. The TCC assists during x
emergency and disaster situations, often
reporting directly to the incident commander.
TCC members also provide first aid during large Rancho Incident —August 2021 public events and gatherings such as the 4th of
July festivities. Members receive a wide array of emergency and disaster training including Care and Shelter Operations, Damage Assessment, Medical and Triage, Emergency Response to Terrorism, Automated External Defibrillator (AED), Stop -the - Bleed, CPR/First Aid, Search and Rescue, and Evacuation techniques.
Temecula Citizen Corps (TCC) Communitv Emergencv Response Team (CERT) — CERT volunteers must attend the FEMA directed 20-hour course to participate as a volunteer.
Graduates are trained to help themselves,
their families and their neighborhoods
during a disaster and are also trained to
work effectively with emergency
responders. Examples of training provided ' R F RT
in the 20-hour FEMA course are: disaster44
''"
preparedness, triage and rapid treatment
techniques, damage assessment, rescuer
safety, search and rescue techniques,
cribbing and leveraging, terrorism
awareness, and disaster fire suppression. CERT Training, May 2022 Training is accessible to all community
members.
Emergency Operations Radio Communications — In an emergency, HAM radio operators who belong to our Temecula Citizen Corps, provide emergency communication for the city, and operate the City's radio room in the Emergency Operations Center. Using special equipment, these volunteers, are also capable of sending live pictures from the incident site to our city's emergency operations center via the HAM radio.
Disaster Animal Care Considerations
The PETS Act (Pets Evacuation and Transportation Standards Act of 2006) directs that state and local emergency preparedness plans address the needs of people with pets and service animals after a major disaster, including the rescue, care and sheltering of animals. The needs of animals during a disaster have been incorporated into this plan, especially in the areas of transportation and care and shelter activities.
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Response Phase
The response phase includes the initial response and extended response operations and activities. Upon receipt of a warning or the observation that an emergency is imminent or likely to occur, the City of Temecula will initiate actions to increase its readiness. During this phase, the priority is to save lives and minimize the effects of the emergency or disaster on the community.
Initial Response
Temecula's initial response activities and operations are primarily performed at the field response level. Emphasis is placed on minimizing the effect of the emergency or disaster. Field responders will utilize the Incident Command System (ICS), which includes unified command, action planning, span of control, and hierarchy of command.
Examples of initial response activities and operations include:
• Briefing of the City Manager and key city officials or employees on the situation. • Dissemination of warnings, emergency public information, and instructions to the citizens of the City of Temecula.
• Conducting evacuations and/or rescue operations.
• Caring for displaced persons and treating the injured. • Conducting initial damage assessments and surveys.
• Assessing the need for mutual aid assistance.
• Restricting movement of traffic/people.
• Establishing Unified Commands.
• Coordinating with state and federal agencies working in the field. • Developing and implementing Incident Action Plans.
Extended Response
Temecula's extended response activities and operations are primarily conducted in the field and within the City of Temecula's Emergency Operations Center. Extended emergency operations involve the coordination and management of personnel and resources to mitigate an emergency and facilitate the transition to recovery operations.
Examples of extended response activities and operations include:
• Preparing detailed damage assessments.
• Operating Mass Care facilities.
• Conducting coroner operations.
• Procuring required resources to sustain operations.
• Documenting the situation status.
• Protecting, controlling, and allocating resources.
• Restoring vital utility services.
• Documenting expenditures.
• Developing and implementing Action Plans for extended operations. • Dissemination of Emergency Public Information.
• Declaring a local emergency.
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• Requesting Governor and State declarations of emergency, if required. • Prioritizing resource allocation.
• Inter and multi -agency coordination.
Alert & Warning
Success in saving lives and property depends on the timely dissemination of warnings and emergency information to persons in threatened areas. Local government is response for the warning of the populace of the jurisdiction. A highly effective alert and warning program will use as many delivery methods as possible. The most effective system leverages all opportunity to link delivery systems, such as being able to send a message through text, email, and social media through a single delivery system.
The OEM administers the city Alert and Warning Program. Maintenance, user training, exercises, and testing are coordinated through OEM as the Alert and Warning Program Administrator. The City of Temecula alert and warning program:
• Contains tools for accessing the Mass Notification System platform. • Contains a variety of tools to communicate with the staff and community during emergencies. Consideration should be made to include tools that allow operators to geo- target alerts to the community in the affected areas of the emergency. • Coordinates with all Alerting Authorities within our area of influence. • Contains features for cancelling and revoking accidental alerts, and for rapidly correcting and updating alert details.
• Considers geographic gaps in communication availability within the community and hazards and threats most likely to affect the local community.
Additional information on the City's Alert & Warning Program can be found in the Alert & Warning Plan which is a supplement support plan to this Emergency Operations Plan.
Recovery Phase
The goal of the Recovery Phase is to restore the affected area to its previous state. This phase is concerned with issues and decisions that must be made after immediate
needs are addressed. Recovery operations are an
extremely important phase in the Emergency
Management Plan for citywide operations but also critical from the facilities standpoint. Recovery consists of
restoring critical programs and services that the
community depends on following an emergency.
Recovery actions could vary based on the needs of the
facility. Typical recovery actions could include debris cleanup, financial assistance to vulnerable populations and sustained mass care for displaced individuals.
Restore
utilities
After Apply far
Action Assistance
Reporting Programs
Recovery ondurt
Oenmhilize Hazard
Operations Mitiaailon
Analysis
ileteilYllrle ldentil}
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Re�pHazards
Rory
Figure 2: Recovery Spider Chart
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As the immediate threat to life, property, and the environment subsides, the rebuilding of Temecula will begin through various recovery activities. Recovery activities may be both short- term and long-term, ranging from restoration of essential utilities such as water and power, to mitigation measures designed to prevent future occurrences of a given threat facing the city.
Examples of recovery activities include:
• Reinstatement of family autonomy
• Restoring utilities
• Applying for state and federal assistance programs
• Providing public assistance information for disaster assistance • Conducting hazard mitigation analyses
• Identifying residual hazards
• Determining and recovering costs associated with response and recovery.
Short Term Recovery
Recovery occurs in two phases: short-term and long-term. Short-term recovery operations will begin during the response phase of the emergency. The major objectives of short-term recovery operations include rapid debris removal and clean-up, and orderly and coordinated restoration of essential services (electricity, water, and sanitary systems). Short-term recovery operations will include all agencies participating in the city's disaster response. Structures that present public safety threats will be demolished and abated during short-term recovery operations.
Long Term Recovery
The transition to long-term recovery is typically characterized by the completion of emergency programs and the return to daily life. This phase alone can last for several months to even years.
The long-term recovery period focuses on restoring economic activity and rebuilding the community. The most important element of this phase is the everyday work completed to reduce the long-term risk to people and property.
Damage Assessment
The City of Temecula and special districts will record a detailed assessment of damage during the recovery phase. This detailed assessment provides the basis for determining the type and amount of state and/or federal financial assistance available for recovery.
Under federal disaster assistance programs, documentation must be obtained regarding damage sustained to:
• Roads
• Water control facilities
• Public buildings and related equipment
• Public utilities
• Facilities under construction
• Recreational and park facilities
• Educational institutions
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• Certain private non-profit facilities
The damage assessment documentation information should include the location and extent of the damage, estimates of costs for debris removal, emergency work, and repairing of damaged facilities to pre -disaster condition. The cost of compliance with building codes for new construction, repair, and restoration will also be documented. The cost of improving facilities may be included under federal mitigation programs.
After Action Reporting
Any city or county declaring a local emergency for which the governor proclaims a state of emergency must complete and transmit an After-Action/Corrective Action report to CalOES within ninety (90) days of the close of the incident period.
The After-Action/Corrective Action report will serve as a source for documenting the City of Temecula's response activities, identifying areas of success as well as areas for improvement. It will also be utilized to develop and describe a work plan for implementation of the improvements.
The Office of Emergency Management will be responsible for completion of the report and will forward to CalOES within the 90-day period.
Disaster Assistance Programs
Disaster assistance programs have been developed for the needs of four (4) distinct groups:
• Individuals — may receive loans or grants for such things as real and personal property, dental, funeral, medical, transportation, unemployment, sheltering, and rental assistance, depending on the extent of the damage.
• Businesses — loans for many types of businesses are often made available through the United States Small Business Administration, assisting with physical and economic losses because of a disaster or emergency. Programs for agricultural needs include assistance for physical and economic losses because of a disaster or emergency. • Governments — funds and grants are available to governments to repair damage because of a disaster or emergency and mitigate the risk of future damage. • Non-profit organizations — funds and grants are also available to certain non-profit organizations.
At each level of emergency declaration, various disaster assistance programs become available to individuals, businesses, governments, and non-profit organizations. • Local Emergency Declarations —The City of Temecula may be eligible for assistance under the Natural Disaster assistance Act (with concurrence of the Governor's Office).
Businesses and individuals may be eligible for the following disaster assistance programs and services:
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o American Red Cross
o Mennonite Disaster Services
o Natural Disaster Assistance Act (NDAA)
o Assistance with Utilities
o Local Government Tax Relief
o US Small Business Administration Disaster Loans
o Salvation Army
o US Department of Agriculture
o Other Community and Volunteer Organizations
• State of Emergency Proclamation —The City of Temecula, special districts, individuals, and businesses may be eligible, in addition to local emergency assistance, for services from the following agencies:
o Board of Registration for Professional Engineers and the Contractor's License Review Board
o Department of Insurance
o Department of Social Services
o Franchise Tax Board Tax Relief
o Department of Motor Vehicles
o Department of Aging
o State Board of Equalization
o Natural Disaster Assistance Act (NDAA)
o Department of Veteran Affairs (CALVET)
o US Department of Agriculture
o US Small Business Administration Disaster Assistance Loans o Prior Assistance Available with Local Declarations
• Presidential Declaration — Under a Presidential Declaration, the City of Temecula, special districts, individuals, and businesses may be eligible for the following disaster assistance programs and services:
o Cora C. Brown Fund (Individual Assistance)
o Crisis Counseling Program
o Disaster Unemployment
o Temporary Housing Program
o Individual and Family Grant Program
o Internal Revenue Service Tax Relief
o Public Assistance
o Legal Aid
o Hazard Mitigation
o Veteran's Affairs Assistance (Housing/Medical)
o Federal Financial Institutions
o Employment Development Assistance
o Prior Assistance with Local/State Declarations
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Local Assistance Center
The City of Temecula will assist individuals affected by the disaster. A Local Assistance Center (LAC) is a one -stop -shop with critical government services for residents who have been impacted by a disaster. At a LAC you can replace lost or destroyed vial documents such as your ID, financial documents, etc. and get connected with other support services. These support services may also include representatives from differing agencies who can aid with disaster loans, grants, answering questions regarding recovery efforts, administration of FEMA's individual assistance program, housing resources, food, shelters, and debris removal.
The City of Temecula's primary objective is to provide our residents with the necessary information to help themselves recover from a disaster.
Figure 3: Local Assistance Center Graphic
Mitigation Phase
The mitigation phase occurs both before and after emergencies or disasters. This phase includes any activities that prevent an emergency, reduce the likelihood of occurrence, or reduce the damaging effects of unavoidable hazards. Mitigation activities should be considered long before an emergency. Mitigation planning is the process used by state and local leaders to understand risks from natural hazards and develop long-term strategies that will reduce the impacts of future events on people, property, and the environment.
Post -Disaster Pre -disaster
•Response
•Prevention
•Recovery
*Reconstruction • 1V epa redo
'Preparedness
Figure 4: Mitigation Process
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Pre -disaster mitigation activities include Risk Assessment, Prevention and Preparedness. • Risk Assessment:
o Hazard Assessment— mapping and monitoring
o Vulnerability Assessment — assessment of vulnerability for all elements exposed to the hazard
o Risk Assessment - calculation of expected losses
• Prevention:
o Structural Measures - special building codes, dams, flood walls, etc. o Non -Structural Measures - land use planning, laws, insurance, public education, etc.
• Preparedness:
o Contingency Planning — plan of action in case of disaster, training of teams o Warning and Evacuation - development of indicators and early warning systems, stimulation exercises.
o Public education and awareness
Post -disaster mitigation is part of the recovery process, which includes Relief, Rehabilitation, and Reconstruction.
• Relief:
o Immediate Intervention — search and rescue, security, food, water, shelter and sanitation, clothes and blankets, and healthcare, etc. (Duration: short term) • Rehabilitation:
o Restoration of basic social functions. (Duration: weeks to months) • Reconstruction:
o Full resumption of socio-economic functions, plus preventative measures. (Duration: months to years)
Whole Community Planning
Requirements of the Americans with Disabilities Act and California Access and Functional Needs Legislation
Access to emergency services shall not be denied on the grounds of race, color, national origin, sex, age, or handicap. To ensure that this goal is met, Title II of the ADA requires State and local governments to make their programs and services accessible to persons with disabilities. This requirement extends not only to physical access at government facilities, programs, and events - - but also to policy changes governmental entities must make to ensure that all people with disabilities and others with access and functional needs can take part in, and benefit from, the programs and services of State and local governments.
The Americans with Disabilities Act of 1990 (ADA) signed into law on July 26, 1990, by President George H. W. Bush, is a broad civil rights law that prohibits discrimination against people with disabilities and others with access and functional needs, including but not limited to mobility, CITY OF TEMECULA 281 Page
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vision, hearing, cognitive disorders, mental illnesses, and language barriers. In 2008, President George W. Bush signed an updated version of the ADA, which is known as the ADA Amendments Act (ADAAA). The revised law broadens the scope of the definition of what it means to have a disability. These changes went into effect January 1, 2009. These amendments make it easier for individuals whole require whole community support services to seek protection under the law.
According to a 2010 study, there are almost 11 million people who require access to Whole Community Support Services in California. The lessons documented from the years of assisting individuals who require whole community support services in disasters show three areas that are repeatedly identified as most important to these individuals: communications (alert, warning, notification), evacuation (transportation), and sheltering.
California Assembly Bill 2311 (Brown, Chapter 520, Statutes of 2016) added California Government Code section 8593.3, which requires each county and city to integrate access and functional needs upon the next update to its emergency response plan. The new Government Code reads:
8593.3. (a) A county, including cities, shall, upon the next update to its emergency plan, integrate access and functional needs into its emergency plan by addressing, at a minimum, how the access and functional needs population is served by the following:
(1) Emergency communications, including the integration of interpreters, translators, and assistive technology.
(2) Emergency evacuation, including the identification of transportation resources and resources that are compliant with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) for individuals who are dependent on public transportation. (3) Emergency sheltering, including ensuring that designated shelters are compliant with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) or can be made compliant through modification and that showers and bathrooms are fully accessible to all occupants.
(b) For purposes of this section, the "access and functional needs population" consists of individuals who have developmental or intellectual disabilities, physical disabilities, chronic conditions, injuries, limited English proficiency or who are non-English speaking, older adults, children, people living in institutionalized settings, or those who are low income, homeless, or transportation disadvantaged, including, but not limited to, those who are dependent on public transit or those who are pregnant.
The city will make every effort to address the needs of individuals who require whole community support services. Initially, priorities are focused on lifesaving operations, evacuations, and stabilization of the incident. The County of Riverside will take into consideration the needs of CITY OF TEMECULA 291 Page
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individuals such as issues with communications, mobility, and accessibility. Included in the County's planning efforts for individuals who require whole community support services are:
• TTD/TTY contact and captioned cable alert for the hearing -impaired. • Spanish/English outreach programs identified language skills of City employees for interpretation.
• ADA compliant access to City facilities and Red Cross shelter facilities. • Identified transportation assistance for those requiring physical assistance. • Temecula ALERT Reverse 911 telephone system for specific geographic areas. • Notification and warning procedures.
• Evacuation considerations.
• Emergency transportation issues.
• Sheltering requirements.
• Accessibility to medications, refrigeration, and back-up power. • Accessibility for mobility devices or service animals while in transit or at shelters and accessibility to emergency information.
The city will plan for and serve those with access and functional needs, ensuring that the most commonly found areas, requiring consistent improvement are included such as:
• Emergency communications.
• Emergency evacuations and
• Emergency sheltering.
Part of any successful planning effort is to understand the impacted population(s). The legal requirements are set forth in Government Code section 8593.3, and define access and functional needs as individuals who have:
• Developmental, intellectual, or physical disabilities. • Chronic conditions or injuries and
• Limited English proficiency or non-English speaking.
Or individuals who are:
• Older adults, children, or pregnant.
• Living in institutional settings.
• Low-income, homeless, and/or transportation disadvantaged; or • From diverse cultures.
Lessons documented from years of assisting individuals with access and functional needs in disasters show three areas repeatedly identified as needing improvement: communications, evacuation, and sheltering.
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Emergency communications
During a disaster, effective communication becomes especially critical. As such, information delivered at press conferences by public officials and broadcasted on television during a disaster needs to be effective, understood, consumable, and actionable by the whole community.
Effective communication considerations include:
• Sign Language interpreters for individuals who are deaf or hard of hearing. • Alternative formats for individuals who are blind/low vision and • Translation services for persons with limited English proficiency or for non-English speaking individuals.
Emergency evacuation
When local evacuations become necessary, considerations for the whole community include:
• Accessible transportation options.
• Medical needs and
• Keeping individuals connected with their families, personal care providers, essential equipment, technologies, and service animals.
Proper planning is including agreements and partnerships with local public and private accessible transportation providers to ensure individuals with disabilities and persons with access and functional needs can evacuate safely
during emergencies.
Emergency evacuation plans should be viewed as living -v' j rp-- documents because communities change and integrating
the needs of individuals with access and functional needs is a dynamic process.
OEM will work and partner with local disability and whole community stakeholders to regularly practice, review, revise, and update plans to reflect changes in technology, personnel, and procedures.
Sheltering
Shelters can be stressful environments and may, without proper planning, exacerbate the physical and emotional impacts that survivors with access and functional needs experience during disasters.
Sheltering needs to be inclusive and integrated not segregated. General population shelters need to be in physically accessible locations and equipped with accessible resources (e.g., bathrooms, cots, showers, etc.) to meet the needs of individuals with access and functional needs in a manner that ensures they can remain with their support systems (e.g., personal care provider, service animal, etc.). Assessing potential sheltering facilities before disasters occur is essential as CITY OF TEMECULA 311 Page
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designated shelters should comply with the requirements of the Americans with Disabilities Act (ADA).
Cal OES Office of Access and Functional Needs
The County Operational Area receives guidance from the California Governor's Office of Emergency Services (Cal OES), Office of Access and Functional Needs. The Cal OES Office of Access and Functional Needs have made resources available to assist communities as they integrate access and functional needs within their emergency planning. Two such tools are:
• CalOES Access and Functional Needs Web Map
• CalOES Access and Functional Needs Library
The Cal OES Access and Functional Needs Web Map
To empower emergency managers to identify the access and functional needs -related assets and resources needed to support the health and independence of survivors, the Cal OES Office of Access and Functional Needs partnered with the Cal OES' GIS Division to create the California AFN Web Map — the first -ever searchable, comprehensive, statewide resource for locating AFN- related assets and resources in California.
Using data from the U.S. Census, the web map contains the following information for every county in the State of California:
• Disability - Total number of individuals in each county with a disability, listed into four categories: hearing difficulty; vision difficulty; cognitive difficulty; and ambulatory difficulty.
• Culture - The ethnicity and primary language(s) spoken at home within each county. • Age - The age (across the life spectrum) of individuals in every county.
The web map outlines where each of the following resources are located:
• Accessible Hygiene Resources - Showers, toileting, and hand washing stations that meet Americans with Disabilities Act (ADA) standards.
• Accessible Transportation - Organizations providing public transportation services to seniors and individuals with disabilities that meet Americans with Disabilities Act (ADA) standards.
• American Sign Language Interpreting Services - Organizations providing interpretation services for individuals who are deaf or hard of hearing. • Assistive Technology - Organizations providing devices, equipment or technology systems, and services for individuals with disabilities. • Community Emergency Response Teams (CERT) Programs - Local programs that educate individuals about disaster preparedness and train them in basic disaster response skills. • Independent Living Centers - Community -based, non-profit organizations designed and operated by individuals with disabilities.
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• Language Translation Services - Organizations providing written text or interpretation services in a language other than English.
• Regional Centers - Non-profit private corporations that contract with the Department of Developmental Services to provide or coordinate services and support for individuals with developmental disabilities.
The Cal OES Office of Access and Functional Needs Library In order to ensure that community leaders, state agencies, advocacy organizations, emergency managers and others have the best and most current access and functional needs -related planning resources available in an easy to access, one -stop -shop central repository, we created the OAFN Library. The OAFN Library is a comprehensive clearinghouse for access and functional needs -specific best practices, guidance documents, videos, and more. For additional questions regarding access and functional needs contact the Cal OES Office of Access and Functional needs at: [email protected]
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CONTINUITY OF GOVERNMENT
A major disaster or national security emergency could result in the death or injury of key government officials and/or the partial or complete destruction of established seats of government, and public and private records essential to continued operations of government and industry. Government at all levels is responsible for providing continuity of effective leadership, authority and adequate direction of emergency and recovery operations. The California Government Code Section 8643(b) and the Constitution of California provide the authority for state and local government to reconstitute itself in the event incumbents are unable to serve.
Government at all levels is responsible for providing continuity of effective leadership, authority and adequate direction of emergency and recovery operations (preparedness, response, recovery, and mitigation). Under California's concept of mutual aid, local officials remain in control of their jurisdiction's emergency operations while other jurisdictions may provide additional resources upon request. A key aspect of this control is to be able to communicate official requests, situation reports, and emergency information during any disaster a community might face.
Preservation of Local Government
Article 15 of the California Emergency Services Act (CESA, Chapter 7 of Division 1 of Title 2 of the Government Code) provides the authority, as well as the procedures to be employed, to ensure continued functioning of political subdivisions within the State of California. Generally, Article 15 permits the appointment of up to three standby officers for each member of the governing body, and up to three standby officers for the chief executive, if not a member of the governing body.
Article 15 provides for the succession of officers who head departments responsible for maintaining law and order, or in furnishing public services relating to health and safety.
Article 15 also outlines procedures to assure continued functioning of political subdivisions in the event the governing body, including standby officers, is unavailable to serve.
The CESA provides for the preservation of city government in the event of a peacetime or national security emergency.
Lines of Succession for Officials Charged with Discharging Emergency Responsibilities The first step in assuring continuity of government is to have personnel who are authorized and prepared to carry out emergency actions for government in the event of a natural, technological, or national security disaster/emergency.
City Council
Article 15, Section 8638 of the CESA authorizes governing bodies to designate and appoint three standby officers for each member of the governing body and for the chief executive, if not a member of the governing body. Standby officers may be residents or officers of a political CITY OF TEMECULA 351 Page
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subdivision other than that to which they are appointed. Standby officers take the same oath as regular officers and are designated Number 1, 2, or 3.
To this end, the City of Temecula, with concurrence of the City Council, shall designate standby Council Members for line of succession planning as follows:
1. Chair, Planning Commission
2. Vice -Chair, Planning Commission
3. Chair, Public/Traffic Safety Commission
4. Vice -Chair, Public/Traffic Safety Commission
5. Chair, Community Services Commission
6. Vice -Chair, Community Services Commission
7. Chair, Race, Equity, Diversity, and Inclusion Commission
8. Vice -Chair, Race, Equity, Diversity, and Inclusion Commission The standby Council Members shall have the same authority and powers as the regular Council Members. Pursuant to Section 8641 of the Government Code, each standby Council Member shall take the oath of office required for the office of City Council Member. Persons appointed as standby Council Members shall serve in their posts at the pleasure of the City Council appointing them and may be removed and replaced at any time with or without cause. Standby Council Members serve only until the regular Council Member becomes available or until a new Council Member is either elected or appointed. In the event a standby office becomes vacant because of removal, death, resignation, or other cause, the City Council shall have the power to appoint another person to fill said office.
The City of Temecula Municipal Code Section 2.56.040 establishes the position of Director of Emergency Services. The City Manager shall serve as the Director. A successor to the position of Director of Emergency Services shall be appointed by the City Manager. Succession occurs:
• Should the director be unavailable or unable to serve, the positions listed below, in order, shall act as the Director of Emergency Services.
• Should these positions be unavailable or unable to serve, the individuals who hold permanent appointments to the following positions in the city will automatically serve as acting director in the order shown. The individual who serves as acting director shall have the authority and powers of the Director and will serve until the Director is again able to serve, or until a successor has been appointed by the City Council.
First Alternate: Assistant City Manager
Second Alternate: Deputy City Manager
Notification of any successor changes shall be made through the established chain of command.
Article 15, Section 8637 of the CESA authorizes political subdivisions to provide for the succession of officers (department heads) having duties related to law and order and/or health and safety.
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Article 15, Section 8644 of the CESA establishes a method for reconstituting the governing body.
It authorizes that, should all members, including all standbys be unavailable, temporary officers shall be appointed as follows:
• By the chairman of the board of the county in which the political subdivision is located. • By the chairman of the board of any other county within 150 miles (nearest and most populated down to farthest and least populated).
• By the mayor of any city within 150 miles (nearest and most populated down to farthest and least populated).
Article 15, Section 8642 CESA authorizes local governing bodies to convene as soon as possible whenever a State of War Emergency, State of Emergency, or Local Emergency exists, and at a place not necessarily within the political subdivision.
Article 15, Section 8643 CESA describes the duties of a governing body during emergencies as follows:
• Ascertain the damage to the jurisdiction and its personnel and property. • Reconstitute itself and any subdivisions.
• Perform functions in preserving law and order and furnishing local services.
Departmental
Below is the continuity of government lines of succession plan for departmental emergency functions.
Service/DepartmentP.
City Manager (Director, Emergency Services)
1. Assistant City Manager
2. Deputy City Manager
Fire Chief (Battalion 15) (Division 3)
1. Battalion Chief 15A
2. Battalion Chief 15B
Police Chief (Riverside County Sheriff)
1. Police Lieutenant
2. Police Lieutenant
Public Works Director
1. Principal Management Analyst
2. Principal Engineer
Community Services Director
1. Community Services Superintendent
2. Community Services Superintendent
Community Development Director
1. Principal Management Analyst
2. Principal Planner
Finance Director
1. Assistant Director of Finance
2. Fiscal Services Manager
Human Resources Director (HR/Risk)
1. Senior Human Resources Analyst
2. Senior Human Resources Analyst
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Service/DepartmentP.
City Clerk
1. Deputy City Clerk
2. Records Manager
City Attorney
1. Assistant City Attorney
2. As Appointed
Information Technology Director
1. Assistant Director of Information Tech.
2. GIS Supervisor
Economic Development
1. Assistant to the City Manager
2. Management Analyst
EOC Lines of Succession
Lines of succession for Emergency Operations Center (EOC) staff are maintained separately in the EOC Activation and Leadership Guide as well as each position specific binder.
Essential facilities: Seat of Government
When emergency conditions arise, the temporary seat of government must be selected by evaluating potential hazards, maximizing safety and security, and understanding the potential for the site to adequately respond to the emergency. Section 8642 of the CESA authorizes the City Council to meet at a place not necessarily within the city in the event of State of War Emergency, State of Emergency, or Local Emergency.
Primary Seat of Government
Temecula Civic Center
41000 Main Street
Temecula, CA 92592
Latitude: 33.49453' N
Longitude: 117.14750' W
What3words: ///fighters.staging.donor
Section 54954 of the Brown Act provides that if a fire, flood, earthquake, or other emergency makes it unsafe to meet in the place designated for holding regular City Council meetings, the presiding officer of the City Council, or his or her designee, can designate the place that regular meetings will be held for the duration of the emergency. The presiding officer's designation of a meeting place under those circumstances must be:
• If City Hall is not usable because of emergency conditions, the temporary office of city government will be as follows:
o 1st Alternate: Ronald H. Roberts Temecula Public Library 30600 Pauba Road
Temecula, CA 92592
Latitude: 33.49679' N
Longitude: 117.12365' W
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What3words: ///calls.trail.wolf
o 2nd Alternate: Temecula Valley Entrepreneurs Exchange (Old City Hall) 43200 Business Park Drive
Temecula, Ca 92590
Latitude: 33.50285' N
Longitude: 117.16345' W
What3words: ///prefer.dissolve.goals
• If the two Alternate locations, as well as any other location in the city are not usable, then the city will reach out to neighboring cities to find a suitable location.
Essential facilities: Emergency Operations Center
An Emergency Operation Center is the center of the City of Temecula's response to emergency conditions. The wide range of potential emergency conditions must consider that the primary Emergency Operations Center may be suspectable to emergency conditions that make specific locations unsafe. When selecting the Emergency Operations Center, potential hazards, maximizing safety and security, and understanding the potential for the site to adequately respond to the emergency must be considered. The primary and Emergency Operations Center locations are listed below and include specific location identifiers for emergency responders, and other outside agencies.
Primary Emergency Operations Center
Temecula Civic Center
41000 Main Street
Temecula, CA 92592
Latitude: 33.49453' N
Longitude: 117.14750' W
What3words: ///fighters.staging.donor
Alternate Emergency Operations Center
Ronald H. Roberts Temecula Public Library
30600 Pauba Road
Temecula, CA 92592
Latitude: 33.49679' N
Longitude: 117.12365' W
What3words: ///calls.trail.wolf
Tertiary Emergency Operations Center
Fire Station 84
30650 Pauba Road
Temecula, CA 92592
Latitude: 33.49710' N
Longitude: 117.12166' W
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What3words: ///recital.blinks.ambition
Virtual Operations (Pandemic or other Public Health Emergency) Meeting virtually on conferencing software such as Zoom, Microsoft Teams, etc. with an authorizing emergency order.
The alternate EOC will be activated only during an event in which the primary EOC is damaged, inaccessible, and/or evacuation of EOC staff members becomes necessary. The operational capabilities of the alternate EOC will be similar to the primary EOC. When the use of an alternate EOC becomes necessary, those occupying the primary EOC will be asked to relocate to the alternate EOC site. If the primary EOC is unusable before its activation, staff members will be asked to report to the alternate EOC site. The Logistics Section will arrange for relocation of EOC staff members to the alternate EOC. Direction and control authority will be transferred from the primary EOC to an alternate EOC when necessary, by the EOC Director. All Section Coordinators will advise their emergency response field forces of the transition to the alternate EOC.
If the primary and alternate EOC are not safe to use, as in an earthquake situation that threatens both facilities, the city will secure an EOC facility outside of the city that is in a safe location and near the city.
Preservation of Vital Records
In the City of Temecula, the City Clerk is responsible for the preservation of vital records. If the City Clerk is unavailable, the Deputy City Clerk will be responsible for the preservation of vital records.
Vital or essential records are an important component to the continuity of government during an emergency. The City must be able to access vital records within 12 hours of establishing that there is an emergency. In 2005, after Hurricane Katrina, officials in the federal state archives suggested changing the vital records terminology to essential records to distinguish records that focus on birth and death certificates and similar vital records. (Essential Records Guide August 2018, National Archives and Records Administration).
To remain consistent with the practice of FEMA and the National Archives and to eliminate any potential confusion with vital records maintained by the County -Assessor -Clerk -Recorder's Office, the City of Temecula will adopt the use of essential records to describe emergency records.
There are two main types of essential records, Emergency Operating Records - records an organization needs to continue functioning or to reconstitute after an emergency, and Legal and Financial Rights Records — records needed to protect the legal and financial rights of the City and of the individuals directly affected by its activities.
Examples of Emergency Operating Records include:
• Emergency plans and directive(s) which specify how an agency will respond to an emergency. • Electronic records systems that determine which records are essential • Orders of succession
• Delegations of authority
• Staffing assignments
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• Selected program records needed to continue the most critical agency operations under emergency conditions and to resume normal operations after an emergency Examples of Legal and Financial Rights Records include:
• Accounts receivable records
• Titles, deeds, and contracts
• Licenses and long-term permits
• Payroll records
• Retirement records
• Insurance records
To ensure that the City is able to maintain continuity of government and access to essential records within 12 hours of the establishment of an emergency, the City has established an Essential Records Program. As part of the Essential Records Plan, a program manager will identify a small amount of City records to be considered essential. As part of the Essential Records plan, the city will maintain an Essential Records inventory to track the records series, their locations, media type, employee responsible, and backup dates to ensure that they're continuously prepared for emergencies and ensure that essential records are locatable in an emergency. The program manager will conduct annual essential records risk assessments to guarantee the policy remains relevant and accurate.
The Essential Records Plan includes a Records Disaster Mitigation and Recovery Plan. Given the importance of essential records, the city will maintain an offsite storage of copies in a facility not immediately subject to the same emergency or disaster and that is reasonably accessible to agency staff. The offsite location is environmentally controlled, and the program manager, along with the IT Department, will conduct annual testing of recovery strategies as part of the Records Disaster Mitigation and Recovery Plan.
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STANDARDIZED EMERGENCY MANAGEMENT SYSTEM (SEMS)
The Standardized Emergency Management System (SEMS) was developed in 1991 after the devastating Oakland -East Bay Hills Fire. During the mutual aid responses to the fire, it was determined that many problems existed with communications, insufficient information flow and no set organizational structure. As a result, Senator Petris, who also lost his home during the fire, introduced Senate Bill 1841. This bill went into effect on January 1, 1993. It is intended to standardize response to emergencies involving multiple jurisdictions or multiple agencies.
SEMS is required by the California Emergency Services Act (Government Code Section 8607(a)) for managing multiagency and multijurisdictional responses to emergencies in California. The system unifies all elements of California's emergency management community into a single integrated system and standardizes key elements. SEMS incorporates the use of the Incident Command System, California Disaster and Civil Defense Master Mutual Aid Agreement, the Operational Area concept and multiagency or inter -agency coordination. State agencies are required to use SEMS and local government entities must use SEMS in order to be eligible for any reimbursement of response -related costs under the state's disaster assistance programs. The City of Temecula has adopted Resolution No. 95-07 approving participation in the Standardized Emergency Management System of the State of California.
What sets SEMS apart from ICS is that ICS applies to field operations and SEMS originated at the state level were coordinating multi -agency resources and working together in a coordinated effort for sharing of critical resources and the prioritization of incidents. Unified command is what allows multiple agencies with responsibility for an incident, either geographical or functional, to manage an incident by establishing a common set of incident objectives and strategies. This is accomplished without losing or abdicating agency authority, autonomy, responsibility, or accountability.
Incident Command System (ICS)
ICS is a nationally recognized on -scene emergency management system specifically designed to allow its user(s) to adopt an integrated organizational structure equal to the complexity and demands of single or multiple incidents without being hindered by jurisdictional boundaries. ICS uses a common organizational structure to effectively accomplish management of the incident by objectives.
The five functions of the ICS organization are command, operations, planning, logistics and finance.
Command is responsible for directing, ordering, and/or controlling resources by virtue of explicit legal, agency, or delegated authority. It includes the incident commander (IC) who is responsible for the overall management of the incident. The command function also includes the Information Officer, Liaison Officer, and Safety Officer.
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Operations is responsible for the coordinated tactical response of all field operations directly applicable to or in support of the mission(s) in accordance with the Incident Action Plan.
Operations develops the operations portion of the Incident Action Plan, requests resources to support tactical operations, maintains close communication with the Incident Commander, and ensures safe tactical operations. The operations function includes branches, divisions, groups, and air operations personnel.
Planning is responsible for the collection, evaluation, documentation, and use of information about the development of the incident. The planning function includes the resource unit, situation unit, documentation unit, and demobilization unit.
Logistics is responsible for providing facilities, services, personnel, equipment, and tracking the status of resources and materials in support of the incident. The logistics function includes the supply unit, facilities unit, ground support unit, communications unit, food unit, and medical unit.
Finance is responsible for all financial and cost analysis aspects of the incident, and/or any administrative aspects not handled by the other functions. The finance function includes the time unit, procurement unit, compensation/claims unit, and the cost unit.
Figure 5: Generic ICS Organizational Chart
Incident Commander(s)
Public Information Officer Liaison Officer
Legal Officer F- H Safety Officer
ICS Advisor
nning Section Chief Logistics Section Ch�
Service Branch Director
Communications Unit
Leader
Medical Unit Leader
Food Unit Leader
Support Branch Director
Supply Unit Leader
Technical Specialists*
Ground Support Unit
Leader
Facilities Unit Leader
Vessel Support Unit
Leader
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Principles of ICS
The system's organizational structure adapts to any emergency or incident to which emergency response agencies would expect to respond.
Components of ICS are:
• Common terminology
• Modular organization
• Unified command structure
• Consolidated action plans
• Manageable span -of -control
• Pre -designed incident facilities
• Comprehensive resource management, and
• Integrated communications
Common titles for organizational functions, resources, and facilities within ICS are utilized.
The organizational structure is developed based upon the type and size of an incident. Staff builds from the top down as the incident grows, with responsibility and performance placed initially with the Incident Commander.
At all incidents there will be five functions: management; operations; planning; logistics; and finance. Initially, the Incident Commander may be performing all five functions. Then, as the incident grows, each function may be established as a section with several units under each section.
Unified command structure is a unified team effort that allows all agencies with responsibility for the incident to manage an incident by establishing a common set of incident objectives and strategies.
Mutual Aid System
California's emergency planning and response includes a statewide mutual aid system which is designed to ensure that adequate resources, facilities, and other support is provided to jurisdictions whenever their own resources prove to be inadequate to cope with a given situation(s). The basis for the system is the California Disaster and Civil Defense Master Mutual Aid Agreement, as provided for in the California Emergency Services Act. This agreement is designed to ensure that adequate resources, facilities, and other support is provided to jurisdictions whenever their own resources prove to be inadequate to cope with an emergency.
Multi -Agency Coordination System (MACS)
The multi -agency coordination system (MACS) is the decision -making system used by member jurisdictions of the Riverside County Operational Area. Agencies and disciplines involved at any level of the Standardized Emergency Management System (SEMS) organization working together to facilitate decisions for overall emergency response activities, including the sharing of critical resources and the prioritization of incidents.
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Operational Area (OA) Concept
SEMS regulations specify that all local governments within a county geographic area be organized into a single Operational Area. The County of Riverside is the lead agency for the Riverside County Operational Area in accordance with SEMS. The City of Temecula is located within the Riverside County Operational Area.
Operational Area Planning Committee
The County of Riverside Emergency Services Ordinance 533, Section 2.1, establishes the Operational Area Planning Committee (OAPC) by the Board of Supervisors. The OAPC has the responsibility to oversee the emergency management activities of the Riverside OA. Membership in the committee consists of representatives from certain designated county departments, all cities within Riverside County, and all special districts who have signed the OA Agreement. The OAPC has a set of by-laws governing membership, voting, and grant review and funding policies.
Five Levels of SEMS
There are five designated levels in the SEMS organization: Field Response, Local Government, Operational Area, Regional and State.
Figure 6: SEMS Levels Chart
STANDARDIZED
EMERGENCY
MANAGEMENT
SYSTEM
steee +soc
1�
, L7E8 Region
,Regions ,+REOC
eaone[Areay + EOC + DQC
��local Goyerntrenl
q city. spedal Olabia etc. + EOC + HOC
eld ICP First Responders etc.
Field Response Level — The field
response level is where emergency
response personnel and resources,
under the command of an appropriate
authority, carry out tactical decisions
and activities in direct response to an
incident or threat. SEMS regulations
require the use of the Incident
Command System (ICS) at the field
response level of an incident. The ICS
field functions are: command,
operations, planning/intelligence,
logistics, and finance/administration.
Local Government Level - Local
governments include cities, counties, and special districts. Local governments manage and coordinate the overall emergency response and recovery activities within their jurisdiction. Local governments are required to use SEMS when their emergency operations center is activated, or a local emergency is proclaimed in order to be eligible for state funding of response -related personnel costs. Local governmental levels shall provide the following functions: management, operations, planning/intelligence, logistics, and finance/administration. Local jurisdictions are responsible for overall direction of personnel and equipment provided for emergency operations through mutual aid (Government Code Section 8618).
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Cities are responsible for emergency response within their boundaries, although some cities contract for some municipal services from other agencies. Note: City of Temecula contracts with Riverside County for both fire and law enforcement services. The city requests all mutual aid (except fire and law) through the Operational Area. Fire and law mutual aid are coordinated through the designated Regional Fire and Law Coordinators.
Special districts are primarily responsible in emergencies for restoration of services that they normally provide. They may also be responsible for safety of people at their facilities or on their property and for warning of hazards from their facilities or operations. Some special districts may assist other local governments in the emergency response.
All local governments are responsible for coordinating with other local governments, the field response level, and the operational area. Local governments are also responsible for providing mutual aid within their capabilities.
Operational Area Level — Under SEMS, the Operational Area serves as an intermediate level of the state's emergency services organization and encompasses the County, including special districts. The Operational Area manages and coordinates information, resources, and priorities among local governments within the County and serves as the coordination and communication link between the local government level and the regional level.
In order to facilitate and coordinate at the operational area level Riverside County has two emergency operation centers (EOCs) to serve Riverside County. They are located at :
Riverside County (West) Primary Emergency Operations Center • 450 East Alessandro Blvd.
• Riverside, CA 92508
Riverside Countv (East) Secondary Emerzencv Operations Center • 82-695 Dr. Carreon Blvd
• Indio, CA 92201
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Regional Level — Because of its size and
geography, the state has been divided into six
mutual aid regions. The purpose of a mutual aid
region is to provide for the more effective
application and coordination of mutual aid and
other emergency related activities.
Cal OES has also established three Administrative
Regions (Coastal, Inland and Southern). These
Administrative Regions are how Cal OES
maintains day-to-day contact with emergency
services organizations at local, county, and
private sector organizations.
Figure 7: CaIOES Administrative Regions
In SEMS, the regional level manages and coordinates information and resources among operational areas within the mutual aid region and between the operational areas and the state level. The regional level also coordinates overall state agency support for emergency response activities within the region.
California Regions
• Northern
OES Region III
_ — Inland
OES Region IV
Coastal
OES Region II -
Valley OES Southern
Region V OES Region VI
Southern -�
OES Region I
Figure 8: CaIOES Mutual Aid Regions
State Level — The state level of SEMS manages
state resources in response to the emergency
needs of the other levels and coordinates
mutual aid among the mutual aid regions and
between the regional level and state level. The
state level also serves as the coordination and
communication link between the state and the
federal disaster response system.
The City of Temecula is located within Cal OES's
Southern Administrative Region and Region 6
mutual aid region.
National Incident Management System (NIMS)
NIMS is a system very similar to the State of California Standardized Emergency Management System (SEMS) and is mandated by Homeland Security Presidential Directive (HSPD-5). The purpose of NIMS is to enhance the ability to manage domestic incidents by establishing a uniform set of processes and procedures that emergency responders at all levels of government will use to conduct response operations.
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There are a total of 6 components that make up NIMS. They are Command and Management, Preparedness, Resource Management, Communications and Information Management, Supporting Technologies, and Ongoing Management and Maintenance.
Command and Management
NIMS standard incident command structures are based on three key organizational systems:
• The Incident Command System (ICS) - ICS is a standardized, on -scene, all -hazard incident management concept. Its organizational structure allows its users to match the complexities and demands of single or multiple incidents without being hindered by jurisdictional boundaries.
• Multi Agency Coordination Systems - Provides coordination for incident prioritization, critical resource allocation, communication systems integration and information coordination. These systems include facilities, equipment, emergency operation centers (EOCs), personnel, procedures, and communications.
• Public Information Systems - Includes processes, procedures, and systems for communicating timely and accurate information to the public during an emergency.
Preparedness
Effective incident management begins with a host of preparedness activities conducted on an ongoing basis, well in advance of any potential incident. Preparedness involves an integrated combination of planning, training, exercises, personnel qualification and certification standards, equipment acquisition and certification standards, and publication management processes and activities.
• Planning - Plans describe how personnel, equipment, and other resources are used to support incident management and emergency response activities. Plans provide mechanisms and systems for setting priorities, integrating multiple entities and functions, and ensuring that communications and other systems are available and integrated in support of a full spectrum of incident management requirements. • Training - Training includes standard courses on multi agency incident command and management, organizational structure, and operational procedures; discipline -specific and agency -specific incident management courses; and courses on the integration and use of supporting technologies.
• Exercises - Incident management organizations and personnel must participate in realistic exercises —including multi -disciplinary, multi -jurisdictional, and multi -sector interaction —to improve integration and interoperability and optimize resource utilization during incident operations.
• Personnel Qualification and Certification - Qualification and certification activities are undertaken to identify and publish national -level standards and measure performance against these standards to ensure that incident management and emergency responder personnel are appropriately qualified and officially certified to perform NIMS-related functions.
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• Equipment Acquisition and Certification - Incident management organizations and emergency responders at all levels rely on various types of equipment to perform mission essential tasks. A critical component of operational preparedness is the acquisition of equipment that will perform to certain standards, including the capability to be interoperable with similar equipment used by other jurisdictions. • Mutual Aid - Mutual -aid agreements are the means for one jurisdiction to provide resources, facilities, services, and other required support to another jurisdiction during an incident. Each jurisdiction should be party to a mutual -aid agreement with appropriate jurisdictions from which they expect to receive or to which they expect to assist during an incident.
• Publications Management - Publications management refers to forms and forms standardization, developing publication materials, administering publications —including establishing naming and numbering conventions, managing the publication and promulgation of documents, and exercising control over sensitive documents —and revising publications when necessary.
Resource Management
The NIMS defines standardized mechanisms and establishes requirements for processes to describe, inventory, mobilize, dispatch, track, and recover resources over the life cycle of an incident.