CITY OF WILDOMAR CITY COUNCIL
AND WILDOMAR CEMETERY DISTRICT AGENDA
APRIL 13, 2022
3:00 P.M. – WORKSHOP
4:00 P.M. – SPECIAL CLOSED SESSION
5:00 P.M. – SPECIAL SESSION
6:00 P.M. – REGULAR SESSION
Wildomar City Council Chambers located at
23873 Clinton Keith Road Ste 106 Wildomar, CA 92595
Virtual attendance via videoconferencing:
Join Zoom Meeting: https://us02web.zoom.us/j/84801699357 OR
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Ben J. Benoit, Mayor/Chair, District 1
Joseph Morabito, Mayor Pro Tem/Vice Chair, District 3
Ashlee DePhillippo, Council Member/Trustee, District 5
Bridgette Moore, Council Member/Trustee, District 4
Dustin Nigg, Council Member/Trustee, District 2
Daniel York Thomas D. Jex
City Manager /General Manager City Attorney/District Counsel
The City of Wildomar encourages your
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City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
3 CALL TO ORDER – WORKSHOP- 3:00 P.M.
ROLL CALL
PUBLIC COMMENTS
0 WORKSHOP
0.1 Local Roadway Safety Plan (LRSP) Community Workshop, CIP 051-1
RECOMMENDATION: Staff recommends that the City Council take the following action:
1. Provide commentary and receive and file the concepts presented for proposed traffic safety improvement projects throughout the City associated with the Local Roadway Safety Plan (LRSP), CIP 051-1 (“Project”).
ADJOURN WORKSHOP
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
4 CALL TO ORDER – SPECIAL CLOSED SESSION - 4:00 P.M.
ROLL CALL
PUBLIC COMMENTS
CLOSED SESSION
1. The City Council will meet in closed session pursuant to the provisions of Government Code Section 54956.8 to confer with legal counsel and conference with real property negotiators as follows:
Property: 362-150-026 – Cross Streets: Clinton Keith Road / Salida Del Sol Agency negotiators: Dan York
Negotiating parties: Roger Schultz, President, Mt. San Jacinto College Under negotiation: Instruction regarding price and terms of payment.
Property: 380-050-025 – Cross Streets: Palomar Street/ South Pasadena Agency negotiators: Dan York
Negotiating parties: Jeanne Weiler, CAFH Order at Wildomar Under negotiation: Instruction regarding price and terms of payment.
RECONVENE INTO OPEN SESSION
ANNOUNCEMENTS
ADJOURN CLOSED SESSION
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
5 CALL TO ORDER – SPECIAL SESSION - 5:00 P.M.
ROLL CALL
FLAG SALUTE
PRESENTATIONS
1. Recognition to former Councilmember Marsha Swanson for her years of service.
ADJOURN SPECIAL SESSION
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
6 CALL TO ORDER – REGULAR SESSION - 6:00 P.M.
ROLL CALL
FLAG SALUTE
PRESENTATIONS
1. Proclamation: Eagle Scouts Carson Gray and Ethan Strong
2. Proclamation: DMV Donate Life Month
3. Cops for Kids Update
4. Reality Rally Inter-City Challenge Video
5. Elsinore Valley Municipal Water District Drought/ Rebate Presentation
DEPARTMENT REPORTS
1. Police Department Update
2. Fire Department Update
3. Library Department Update
4. Other Department Reports
PUBLIC COMMENTS
This is the time when the Council receives general public comments regarding any items or matters within the jurisdiction that do not appear on the agenda.
COUNCIL COMMUNICATIONS
1. Community events
2. Regional events
3. Chamber of Commerce
4. Riverside Transit Agency (RTA)
5. Riverside Conservation Authority (RCA)
6. Riverside County Transportation Commission (RCTC)
7. League of California Cities
8. Southern California Association of Governments (SCAG)
9. Riverside County Habitat Conservation Agency (RCHCA)
10. Western Riverside Council of Governments (WRCOG)
11. South Coast Air Quality Management District (SCAQMD)
12. Southwest Community Financing Authority (Animal Shelter)
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
7 13. Western Community Energy (WCE)
14. Ad Hoc & Subcommittees
APPROVAL OF THE AGENDA AS PRESENTED
The City Council to approve the agenda as it is herein presented , or, if it is the desire of the City Council, the agenda can be reordered , added to, or have items tabled at this time.
1.0 CONSENT CALENDAR
All matters listed under the Consent Calendar are considered routine and will be enacted by one roll call vote. There will be no separate discussion of these items unless members of the Council, the Public, or Staff request to have specific items removed from the Consent Calendar for separate discussion and/or action.
1.1 Reading of Ordinances
RECOMMENDATION: Staff recommends that the City Council approve the reading by title only of all ordinances on this agenda.
1.2 Minutes- February 9 2022 Regular Meeting
RECOMMENDATION: Staff recommends that the City Council approve the minutes as presented.
1.3 Warrant and Payroll Registers
RECOMMENDATION: Staff recommends that the City Council approve the following:
1. Warrant Registers dated 03-03-2022 in the amount of $921,111.21.
2. Warrant Register dated 03-10-2022 in the amount of $174,930.59.
3. Warrant Register dated 03-17-2022 in the amount of $482,126.76.
4. Warrant Register dated 03-24-2022 in the amount of $228,383.81.
5. Warrant Register dated 03-31-2022 in the amount of $764,945.68.
6. Wire Transfer Register dated 03-31-2022 in the amount of $42,937.96.
7. Payroll Register dated 04-01-2022 in the amount of $178,321.56.
1.4 Treasurer’s Report
RECOMMENDATION: Staff recommends that the City Council approve the Treasurer’s Report for February 2022.
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
8 1.5 2nd Reading of Ordinance No. 214 – The Bakery Retail Cannabis - Development Agreement No. 20-0086
RECOMMENDATION: The Planning Commission recommends that the City Council adopt an Ordinance entitled:
ORDINANCE NO. 214
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WILDOMAR, CALIFORNIA, ADOPTING A CATEGORICAL EXEMPTION
IN ACCORDANCE WITH SECTION 15301 (CLASS 1) OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), AND
APPROVING DEVELOPMENT AGREEMENT NO. 20-0086, SUBJECT
TO CONDITIONS, TO ESTABLISH A 6,345 SQUARE-FOOT RETAIL
CANNABIS BUSINESS WITHIN AN EXISTING RETAIL LEASE SPACE IN THE C-1/C-P ZONE LOCATED AT 22812 PALOMAR STREET (SUITE #100 – 103)
1.6 2022 First Quarter Update - Public Works/Engineering Department RECOMMENDATION: Staff recommends that the City Council receive and file the 2022 First Quarter Department Update for the Public Works/Engineering Department.
1.7 Notice of Completion for CIP 026 -2A (Bundy Canyon Rd. House Demolition Project)
RECOMMENDATION: Staff recommends that the City Council adopt a Resolution entitled:
RESOLUTION NO. 2022-_______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR,
CALIFORNIA, ACCEPTING THE HOUSE DEMOLITION FOR THE BUNDY CANYON ROAD IMPROVEMENT PROJECT, SEGMENT 2 (CIP 026 -2A)
AS COMPLETE, AN D AUTHORIZING STAFF TO PREPARE AND FILE
THE NOTICE OF COMPLETION WITH THE RIVERSIDE COUNTY
RECORDER
1.8 Inland Valley Medical Center Expansion - Precise Grading Agreement and Stormwater Management/BMP Facilities Agreement
RECOMMENDATION: Staff recommends that the City Council authorize the City Manager to execute the Precise Grading Agreement and Stormwater Management/BMP Facilities Agreement with Universal Health Services of Rancho Springs, LLC.
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
9 1.9 Award Services Agreement with Rogers Anderson Malody & Scott, LLP (RAMS) Auditing Services Contract
RECOMMENDATION: Staff recommends that the City Council approve a three year contract with external auditors Rogers Anderson Malody & Scott, LLP (RAMS) to provide for audit services and preparation of required reports for fiscal years 2021/22 through 2023/24 and authorize the City Manager to execute the contract.
1.10 Consideration of Adoption of a City Flag Display Policy RECOMMENDATION: Staff recommends that the City Council consider and adopt the attached City Flag Display Policy
1.11 Adopting an Administrative Policy: “Family Care & Medical Leave, and Pregnancy Disability Leave Policy.”
RECOMMENDATION: Staff recommends that the City Council approve the adoption of the City of Wildomar’s “Family Care & Medical Leave, and Pregnancy Disability Leave Policy,” and remove all references to the Family Medical Leave Act (FMLA) from the City’s Personnel Rules.
1.12 Establishment of Community Facilities District No. 2022-1 (Services) RECOMMENDATION: Staff recommends that Council adopt the following Resolution:
RESOLUTION NO. 2022 - ___
RESOLUTION OF CITY COUNCIL OF THE CITY OF WILDOMAR
DECLARING ITS INTENTION TO ESTABLISH COMMUNITY FACILITIES DISTRICT NO. 2022 -1 (SERVICES) OF THE CITY OF WILDOMAR, TO
AUTHORIZE THE LEVY OF A SPECIAL TAX ON PROPERTY WITHIN
THE DISTRICT TO PAY THE COSTS OF PROVIDING CERTAIN PUBLIC
SERVICES
1.13 Establishment of Community Facilities District No. 2022 -2 (Horizon Place)
RECOMMENDATION: Staff recommends that Council adopt the following Resolutions:
RESOLUTION NO. 2022 - ___
RESOLUTION OF INTENTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR TO ESTABLISH COMMUNITY FACILITIES DISTRICT NO. 2022-2 (HORIZON PLACE) OF THE CITY OF WILDOMAR, TO
AUTHORIZE THE LEVY OF A SPECIAL TAX TO PAY THE COSTS OF
ACQUIRING OR CONSTRUCTING CERTAIN FACILITIES AND TO PAY
DEBT SERVICE ON BONDED INDEBTEDNESS
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
10 And
RESOLUTION NO. 2022 - ___
RESOLUTION OF INTENTION OF THE CITY COUNCIL OF THE CITY OF
THE CITY OF WILDOMAR TO INCUR BONDED INDEBTEDNESS IN AN AMOUNT NOT TO EXCEED $10,000,000 WITHIN PROPOSED
COMMUNITY FACILITIES DISTRICT NO. 2022-2 (HORIZON PLACE) OF
THE CITY OF WILDOMAR
2.0 PUBLIC HEARINGS
2.1 Zoning Ordinance Amendment No. 2022 -01: A proposed code amendment to require a conditional use permit for gasoline and diesel service stations with the concurrent sale of beer and wine for off - premises consumption
RECOMMENDATION: The Planning Commission recommends the
City Council introduce and approve the first reading of an Ordinance entitled:
ORDINANCE NO. ___
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WILDOMAR,
CALIFORNIA, ADOPTING A GENERAL RULE EXEMPTION IN
ACCORDANCE WITH SECTION 15061(B)(3) OF CEQA AND APPROVAL OF ZONING ORDINANCE AMENDMENT NO. 2022 -01 TO MODIFY
CHAPTERS 17.88; 17.92; 17.96; 17.108; AND 17.248 OF THE
WILDOMAR MUNICIPAL CODE REQUIRING A CONDITIONAL USE
PERMIT FOR GASOLINE AND DIESEL SERVICE STATIONS WITH THE
CONCURRENT SALE OF BEER AND WINE FOR OFF -PREMISES
CONSUMPTION
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
11 3.0 GENERAL BUSINESS
3.1 Ordinance Repealing and Replacing Chapter 15.40 of the Wildomar Municipal Code – Adopting International Property Maintenance Code by reference
RECOMMENDATION: Staff recommends that the City Council
introduce and waive further reading of an Ordinance entitled:
ORDINANCE NO. ____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WILDOMAR,
CALIFORNIA, AMENDING THE WILDO MAR MUNICIPAL CODE BY
REPEALING CHAPTER 15.40 “UNIFORM CODE FOR THE ABATEMENT OF DANGEROUS BUILDINGS” AND ADDING CHAPTER 15.40
“INTERNATIONAL PROPERTY MAINTENANCE CODE”
3.2 FY 2021-22 3rd Quarter Budget Report
RECOMMENDATION: Staff recommends that the City Council review and approve the Fiscal Year 2021 -22 3rd Quarter Report, and adopt a Resolution entitled:
RESOLUTION NO. 2022 - _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA, AUTHORIZING AMENDMENTS TO THE FY 2021 -22
BUDGETED REVENUES AND EXPENSES
3.3 Extension of the Temporary Use Permit (TUP) regulations for outdoor commercial activities
RECOMMENDATION: The Wildomar Disaster Council (WDC)
recommends that the City Council adopt an Uncodified Urgency Ordinance entitled:
ORDINANCE NO. ____
AN UNCODIFIED URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF WILDOMAR, CALIFORNIA, REGARDING TEMPORARY
USE PERMITS FOR OUTDOOR COMMERCIAL ACTIVITIES
3.4 Draft Legislative Platform
RECOMMENDATION: Staff recommends that the City Council provide input for the Draft Legislative Platform.
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
12 3.5 Committees, Commissions, and Boards Appointment
RECOMMENDATION: Staff recommends that the City Council:
1. Review the current list of committees, commissions, and boards and update appointments as necessary.
2. Add and appoint two members to serve on the Finance Subcommittee.
3.6 Surveillance Camera Exchange and Installation
RECOMMENDATION: Staff recommends that the City Council
approve:
1. Return procured surveillance cameras and use credited amount towards camera units with one year storage capacity;
2. The utilization of Infinity Technologies for the installation of new cameras.
CITY MANAGER REPORT
COVID Update
National Volunteer Week
FUTURE AGENDA ITEMS
Title- Councilmember-Anticipated Date
1. Update from MSJC College regarding 2014 Bond Funding – Morabito - TBD
2. City Wide Street Sweeping – Moore – TBD
3. Street Signage – Benoit - TBD
ADJOURN THE CITY COUNCIL MEETING
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
13 In ac cordance with Government Code Section 54952.3, I, Janet Morales, City of Wildomar City Clerk, do hereby declare that the Board of Trustees will receive no compensation or stipend for the convening of the following regular meeting of the Wildomar Cemetery District.
Ben J. Benoit, Chair
Joseph Morabito, Vice Chair
Ashlee DePhillippo, Trustee
Bridgette Moore, Trustee
Dustin Nigg, Trustee
Daniel York Thomas D. Jex
General Manager District Counsel
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
14 CALL TO ORDER THE WILDOMAR CEMETERY DISTRICT
ROLL CALL
PUBLIC COMMENTS
BOARD COMMUNICATIONS
APPROVAL OF THE AGENDA AS PRESENTED
The Board of Trustees to approve the agenda as it is herein presented, or if it is the desire of the Board, the agenda can be reordered at this time.
4.0 CONSENT CALENDAR
All matters listed under the Consent Calendar are considered routine and will be enacted by one roll call vote. There will be no separate discussion of these items unless members of the Board, the Public, or Staff request that specific items are removed from the Consent Calendar for separate discussion and/or action.
4.1 Minutes – March 9, 2022 Regular Meeting
RECOMMENDATION: Staff recommends that the Board of Trustees approve the Minutes as presented.
4.2 Warrant Register
RECOMMENDATION: Staff recommends that the Board of Trustees approve the following:
1. Warrant Register dated 03-03-2022 in the amount of $7,045.86.
2. Warrant Register dated 03-10-2022 in the amount of $1,096.81.
3. Warrant Register dated 03-24-2022 in the amount of $25.00.
4. Warrant Register dated 03-31-2022 in the amount of $1,630.80.
4.3 Treasurer’s Report
RECOMMENDATION: Staff recommends that the Board of Trustees approve the Treasurer’s Report for February 2022.
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
15 5.0 PUBLIC HEARINGS
There are no items scheduled.
6.0 GENERAL BUSINESS
There are no items scheduled.
GENERAL MANAGER REPORT
FUTURE AGENDA ITEMS
ADJOURN THE WILDOMAR CEMETERY DISTRICT MEETING
REPORTS: All agenda items and reports are available for review at City Hall, 23873 Clinton Keith Road and on the City’s website at the following address:
http://www.cityofwildomar.org/government/agendas___minutes. Any writings or documents provided to a majority of the City Council regarding any item on this agenda (other than writings legally exempt from public disclosure) will be made available by appointment for public inspection at City Hall during regular business hours.
If requested, the agenda and backup materials will be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans With Disabilities Act of 1990 (42 U.S.C . Sec. 12132), and the federal rules and regulations adopted in implementation thereof.
Any person that requires a disability -related modification or accommodation, including auxiliary aids or services, in order to participate in the public meeting, may request such modification, accommodation, aid or service by contacting the City Clerk either in person or by phone at 951-677-7751, no later than 10:00 a.m. on the day preceding the scheduled meeting.
City of Wildomar
City Council/ Cemetery District Agenda
April 13, 2022
16 I, Janet Morales, Wildomar City Clerk, do certify that at least 72 hours prior to the meeting, a true and correct copy of this agenda was posted at Wildomar City Hall, 23873 Clinton Keith Road ; U.S. Post Office, 21392 Palomar Street ; Wildomar Library, 34303 Mission Trail Blvd; and on the City’s website at www.cityofwildomar.org.
_____________________________
Janet Morales, CMC
City Clerk
Dated: April 8, 2022
CITY OF WILDOMAR – CITY COUNCIL
Agenda Item #0.1
WORKSHOP
Meeting Date: April 13, 2022
______________________________________________________________________
TO: Mayor and Council Members
FROM: Jason Farag, CIP Program Manager
PREPARED BY: Cameron Luna, Project Manager
SUBJECT: Local Roadway Safety Plan (LRSP) Community Workshop, CIP 051-1
STAFF REPORT
RECOMMENDATION:
Staff recommends that the City Council take the following action:
1. Provide commentary and receive and file the concepts presented for proposed traffic safety improvement projects throughout the City associated with the Local Roadway Safety Plan (LRSP), CIP 051-1 (“Project”).
BACKGROUND:
On February 12, 2020 the City Council authorized the City Manager to execute a Services Agreement between the City of Wildomar and KOA Corporation for the preparation of a Systemic Safety Analysis Report (SSAR) (CIP 51). This report obtained and analyzed collision data to identify safety issues and recommend countermeasures at certain intersections and roadway segments throughout the City . On October 8, 2019, after the City had already advertised its Request for Proposals (RFP) for the SSAR, Caltrans made its first call for projects for the LRSP development which was to replace the SSAR as the enhanced program. The LRSP report is now a requirement for an agency to be eligible to apply for funding under the Highway Safety Improvement Program (HSIP ) administered by Caltrans. An amendment to KOA’s contract subsequently issued to authorize KOA to convert the City’s SSAR to an LRSP.
DISCUSSION:
The LRSP incorporates the framework and aspects of the California Statewide Strategic Highway Safety Plan that was used to develop the City’s SSAR . The Statewide plan focuses on the Four “E’s” of transportation safety - Engineering, Enforcement, Education, and Emergency Medical Services (EMS). The SSAR primarily focused on the Engineering measure. However, many transportation safety issues cannot be resolved with engineering alone. The solutions developed in the LRSP enhance the SSAR report recommendations by further evaluating the 3 non-engineering measures - Enforcement, Education, and EMS. Preparing an LRSP offers a proactive approach to addressing
safety needs by facilitating collaboration and the development of partnerships with local agencies and stakeholders, demonstrating agency responsiveness to safety challenges.
The results of these collaborative efforts are then summarized into a prioritized list of recommended improvements and actions, and completion of the LRSP will also enable the City to apply for future Highway Safety Improvement Program (HSIP) grant funds.
City Staff and KOA will lead a workshop to seek public input on major transportation safety issues and proposed safety measures in Wildomar. The presentation will cover the following items:
• Project background and current progress
• Outreach approach
• Four E’s and types of projects/programs
• Identified patterns and emphasis areas of transportation safety in the City • Proposed engineering safety countermeasures, potential CIP Projects • Proposed non-engineering programs, campaigns, and strategies • Summary of findings of collision data analysis, field investigation, and proposed safety measures.
• Funding opportunities and final LRSP report timeline
During the Workshop, attendees both in-person and through Zoom will have opportunities to provide feedback on the P roject’s goals, staff’s analysis, findings, and the proposed safety measures.
FISCAL IMPACTS:
An amendment for the additional scope of work service by KOA for converting the SSAR to an LRSP was approved by the City Manager. The additional Funding was approved as part of the Capital Improvement Program (CIP) by the City Council. Funding was included in the FY 21/22 budget for CIP 051-1, and consists of $31,500 in State Grant Funds and $7,000 in Measure A funds.
There is no impact to the City’s General Fund.
Submitted by: Approved by:
Jason Farag Dan York
CIP Program Manager City Manager
ATTACHMENTS:
None
Agenda Item #1.2
CITY OF WILDOMAR
CITY COUNCIL REGULAR MEETING MINUTES
FEBRUARY 9, 2022
CALL TO ORDER – WORKSHOP- 3:00 P.M.
The Workshop of February 9, 2022, of the Wildomar City Council was conducted pursuant to Assembly Bill 361 with in-person attendance at the Wildomar Council Chambers, 23873 Clinton Keith Road, Suite 106, Wildomar, California, and via videoconferencing, and was called to order by Mayor Benoit at 3:01 p.m.
City Council Roll Call showed the following:
Members in attendance: Council Member Moore, Nigg, Swanson, Mayor Pro Tem Morabito, Mayor Benoit
Members absent: None
Staff in attendance: Assistant City Man ager York, City Attorney Jex, City Clerk Morales, Planning Director Bassi, Administrative Services Director Howell, Project Consultant Riley, Economic Development Director Davidson, Senior Engineer Farag, Development Manager Stadnik , Community Services Director Torres and Senior Project Manager Repke.
PUBLIC COMMENTS
There were no public comments.
0 WORKSHOP
0.1 General Plan Update Project Proposal and Budget Review: Staff presentation and City Council work study discussion on the Comprehensive General Plan Update Project Proposal and Budget
Mayor Benoit read the title.
Planning Director Bassi presented the staff report.
Kenny Mayes, resident, provided public comment.
It was the consensus of the City Council to receive the presentation on the
City of Wildomar
City Council Minutes
February 9, 2022
2 Comprehensive General Plan Update and directed staff to create a General Plan Advisory Group.
ADJOURN WORKSHOP
There being no further business, Mayor Benoit adjourned the Workshop at 3:46 p.m.
CALL TO ORDER – REGULAR SESSION - 6:00 P.M.
The Regular Session of February 9, 2022, of the Wildomar City Council was conducted pursuant to Assembly Bill 361 with in- person attendance at the Wildomar Council Chambers, 23873 Clinton Keith Road, Suite 106, Wildomar, California, and via videoconferencing, and was called to order by Mayor Benoit at 6:00 p.m.
Members in attendance: Council Member Moore, Nigg, Swanson, Mayor Pro Tem Morabito, Mayor Benoit
Members absent: None
Staff in attendance: Assistant City Manager York, City Attorney Jex, City Clerk Morales, Planning Director Bassi, Administrative Services Director Howell, Project Consultant Riley, Economic Development Director Davidson, Senior Engineer Farag, Development Manager Stadnik , Community Services Director Torres , Senior Project Manager Repke and Code Enforcement Supervisor Raul Berroteran.
The flag salute was led by Mayor Pro Tem Morabito.
2.0 PUBLIC HEARINGS
2.1 Fourth Public Hearing to Receive Input from the Community and Introduce an Ordinance Regarding the Redrawing of Election Boundaries
Mayor Benoit read the title.
Mayor Benoit opened the public hearing.
City Clerk Morales and Todd Tatum from the National Demographics Corporation presented the staff report.
City of Wildomar
City Council Minutes
February 9, 2022
3 Gina Castanon, resident, with time donated by Ruben Castanon, resident, spoke for a total of 6 minutes in opposition of the item.
George Taylor, resident, spoke in opposition of the item.
There being no further testimony, Mayor Pro Tem Benoit closed the public hearing.
A M OTION was made by Councilmember Nigg seconded by
Councilmember Swanson to adopt the first reading of the following Ordinance as presented with preferred Map NDC 101b:
ORDINANCE NO. - 213
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WILDOMAR, CALIFORNIA ADJUSTING THE BOUNDARIES OF CITY
COUNCIL ELECTORAL DISTRICTS AND REDEFINING THE
BOUNDARIES OF ALL CITY COUNCIL ELECTORAL DISTRICTS OF
THE CITY OF WILDOMAR
MOTION carried 5-0, by the following vote:
YEA: Moore, Nigg, Swanson, Mayor Pro Tem Morabito, Mayor Benoit NAY: None
ABSTAIN: None
ABSENT: None
PRESENTATIONS
1. Presented Michael’s Pizza 30th Anniversary Video.
DEPARTMENT REPORTS
1. Code Enforcement Supervisor Berroteran presented the Code Enforcement Department Update.
PUBLIC COMMENTS
The following individuals provided public comment on items not on the agenda:
1. Kenneth Mayes, resident
2. Andy Morris, Elsinore Valley Municipal Water District
3. Albia Miller
City of Wildomar
City Council Minutes
February 9, 2022
4 COUNCIL COMMUNICATIONS
The City Council Members spoke regarding the various committees, commissions, and boards that they serve on locally and regionally and community events, including:
1. Community events
2. Regional events
3. Chamber of Commerce
4. Riverside Transit Agency (RTA)
5. Riverside Conservation Authority (RCA)
6. Riverside County Transportation Commission (RCTC)
7. League of California Cities
8. Southern California Association of Governments (SCAG)
9. Riverside County Habitat Conservation Agency (RCHCA)
10. Western Riverside Council of Governments (WRCOG)
11. South Coast Air Quality Management District (SCAQMD)
12. Southwest Community Financing Authority (Animal Shelter)
13. Western Community Energy (WCE)
14. Ad Hoc & Subcommittees
APPROVAL OF THE AGENDA AS PRESENTED
There were no changes to the agenda as presented.
1.0 CONSENT CALENDAR
Staff requested to table Agenda Item #1.13 to bring back at a future date.
Kenny Mayes, resident, provided public comment on Agenda Item #1.12.
A M OTION was made by Councilmember Nigg seconded by Councilmember Swanson to approve the Consent Calendar without Agenda Item #1.13.
MOTION carried 5-0, by the following vote:
YEA: Moore, Nigg, Swanson, Mayor Pro Tem Morabito, Mayor Benoit NAY: None
ABSTAIN: None
ABSENT: None
1.1 Reading of Ordinances
Approved the reading by title only of all ordinances on this agenda.
City of Wildomar
City Council Minutes
February 9, 2022
5 1.2 Minutes- December 15, 2021 Adjourned Regular Meeting Approved the minutes as presented.
1.3 Minutes- December 15, 2021 Special Meeting
Approved the minutes as presented.
1.4 Warrant and Payroll Registers
Approved the following:
1. Warrant Register dated 01-06-2022 in the amount of $82,900.55.
2. Warrant Register dated 01-11-2022 in the amount of $33,589.25.
3. Warrant Register dated 01-13-2022 in the amount of $344,528.51.
4. Warrant Register dated 01-20-2022 in the amount of $494,701.64.
5. Warrant Register dated 01-27-2022 in the amount of $483,514.62.
6. Wire Transfer Register dated 01-31-2022 in the amount of $51,931.65.
7. Payroll Register dated 02-01-2022 in the amount of $191,579.89.
1.5 Treasurer’s Report
Approved the Treasurer’s Report for December 2021.
1.6 Consideration of a Resolution authorizing the continuing need for a teleconferencing option for City Council, Commission and Committee meetings pursuant to Assembly Bill No. 361
Adopted a Resolution entitled:
RESOLUTION NO. 2022 - 03
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR,
CALIFORNIA AUTHORIZING THE CONTINUING NEED FOR
TELECONFERENCING OPTION FOR CITY COUNCIL, COMMISSION
AND COMMITTEE MEETINGS PURSUANT TO ASSEMBLY BILL 361
AND MAKING FINDINGS AND DETERMINATIONS REGARDING THE
SAME
1.7 2nd Reading of Ordinance No. 210 for Change of Zone No. 2021-01 Adopted an Ordinance entitled:
ORDINANCE NO. 210
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WILDOMAR, CALIFORNIA APPROVING CHANGE OF ZONE NO. 2021- 01 (ZONING CONSISTENCY PROGRAM) TO CHANGE THE EXISTING
ZONING DESIGNATION FOR 254 PROPERTIES TO MATCH THEIR
EXISTING GENERAL PLAN LAND USE DESIGNATIONS IN
City of Wildomar
City Council Minutes
February 9, 2022
6 ACCORDANCE WITH GOVERNMENT CODE 65860
1.8 2nd Reading of Ordinance No. 211 for ZOA No. 2021-04 Adopted an Ordinance entitled:
ORDINANCE NO. 211
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WILDOMAR, CALIFORNIA, ADOPTING A GENERAL RULE EXEMPTION IN ACCORDANCE WITH SECTION 15061(B)(3) OF THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (CEQA) GUIDELINES, AND
APPROVAL OF ZONING ORDINANCE AMENDMENT NO. 2021-04 TO
MODIFY SECTION 17.36 (MULTIPLE FAMILY DWELLING ZONE), 17.44 (GENERAL RESIDENTIAL ZONE) AND 17.68 (RESIDENTIAL
INCENTIVE ZONE) OF THE WILDOMAR MUNICIPAL CODE RELATED
TO MULTI-FAMILY DEVELOPMENT STANDARDS
1.9 2nd Reading of Ordinance No. 212 for ZOA No. 2021-05 Adopted an Ordinance entitled:
ORDINANCE NO. 212
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WILDOMAR, CALIFORNIA, ADOPTION OF AN EXEMPTION IN
ACCORDANCE WITH SECTIONS 15061(B)(3) AND 15308 OF THE
CEQA GUIDELINES AND APPROVAL OF ZONING ORDINANCE
AMENDMENT NO. 2021-05 TO MODIFY CHAPTER 17.276 (WATER
EFFICIENT LANDSCAPES) OF THE WILDOMAR MUNICIPAL CODE
ESTABLISHING A NEW SUBSECTION TO ADDRESS SB 1383 STATE
REQUIREMENTS
1.10 COVID-19 Prevention Program Update
Approved the updates to the COVID-19 Prevention Policy.
1.11 Quitclaim Deeds to Riverside County Flood Control and Water Conservation District for the Wildomar Master Drainage Plan Lateral C, Stage 3 Construction, CIP 063
Authorized the City Manager to execute two Quitclaim Deeds to the Riverside County Flood Control and Water Conservation District (District) for the construction of Wildomar MDP Lateral C, Stage 3.
1.12 Purchase of Wetland Mitigation Bank Credits for the Palomar Street/Clinton Keith Rd. Sidewalk, Trail & Connectivity Project, CIP 059
Authorized the City Manager to execute Mitigation Credit Purchase
City of Wildomar
City Council Minutes
February 9, 2022
7 Agreements between the City of Wildomar and RBV Mitigation Credits, LLC and Wildlands SLR Holdings, LLC for the Palomar Street/Clinton Keith Rd.
Sidewalk, Trail and Bike Lane Connectivity Project, CIP 059 (Project).
1.13 Resolution Approving the Filing of all Applications for Grant Funds from the Recreational Trails Program (RTP)
Tabled to a future date.
3.0 GENERAL BUSINESS
3.1 COVID-19 Update
Mayor Benoit read the title.
Community Services Director Torres presented the staff report.
It was the consensus of the City Council to receive and file the report.
3.2 FY 2021-22 Mid-Year Budget Report
Mayor Benoit read the title.
Administrative Services Director Howell and Assistant City Manager York presented the staff report.
Kenny Mayes, resident, provided public comment.
Gina Castanon, resident, provided public comment in favor of the item.
A MOTION was made by Councilmember Moore seconded by Mayor Pro Tem Morabito to approve the Fiscal Year 2021- 22 Mid-Year Report, and adopt a Resolution entitled:
RESOLUTION NO. 2022 - 04
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA, AUTHORIZING AMENDMENTS TO THE FY 2021-22
BUDGETED REVENUES AND EXPENSES
MOTION carried 5-0, by the following vote:
YEA: Moore, Nigg, Swanson, Mayor Pro Tem Morabito, Mayor Benoit NAY: None
ABSTAIN: None
ABSENT: None
City of Wildomar
City Council Minutes
February 9, 2022
8 3.3 General Plan Update Project Proposal and Budget Review: Staff presentation and City Council work study discussion on the Comprehensive General Plan Update Project Proposal and Budget Mayor Benoit read the title.
Planning Director Bassi presented the staff reports.
Gina Castanon, resident, with time donated by Ruben Castanon, resident, spoke for a total of 6 minutes in favor of the item.
John Lloyd, resident, spoke in favor of the item.
A M OTION was made by Councilmember Moore seconded by
Councilmember Swanson to
1. Authorize the City Manager to execute a Professional Services Agreement between the City of Wildomar and PlaceWorks, Inc. in the amount of $1,382,960; and
2. Appropriate $557,000 for the remainder of Fiscal Year 2021/22 (for Tasks 1 – 3 in proposal) and appropriate $876,000 (for tasks 4 – 8 in the proposal, including $50,000 for City Attorney costs) for Fiscal Year 2022/23.
MOTION carried 5-0, by the following vote:
YEA: Moore, Nigg, Swanson, Mayor Pro Tem Morabito, Mayor Benoit NAY: None
ABSTAIN: None
ABSENT: None
3.4 Award Services Agreement with HR Dynamics & Performance Management, Inc., Classification and Compensation Study Mayor Benoit read the title.
Project Consultant Riley presented the staff report.
A M OTION was made by Councilmember Swanson seconded by Councilmember Moore to authorize the City Manager to enter into a Professional Services Agreement with HR Dynamics & Performance Management, Inc. to perform a Classification and Compensation Study for the City of Wildomar.
City of Wildomar
City Council Minutes
February 9, 2022
9 MOTION carried 5-0, by the following vote:
YEA: Moore, Nigg, Swanson, Mayor Pro Tem Morabito, Mayor Benoit NAY: None
ABSTAIN: None
ABSENT: None
3.5 Updated 2022 Parks and Community Services Special Events Calendar
Mayor Benoit read the title.
Community Services Director Torres presented the staff report.
Kenny Mayes, resident, provided public comment.
A M OTION was made by Councilmember Moore seconded by
Councilmember Swanson to approve the updated 2022 Special Events Calendar.
MOTION carried 5-0, by the following vote:
YEA: Moore, Nigg, Swanson, Mayor Pro Tem Morabito, Mayor Benoit NAY: None
ABSTAIN: None
ABSENT: None
CITY MANAGER REPORT
City Manager York presented the Staff Report.
FUTURE AGENDA ITEMS
No future agenda items added.
ADJOURN THE CITY COUNCIL MEETING
There being no further business, Mayor Benoit adjourned the City Council Meeting at 7:50 p.m.
City of Wildomar
City Council Minutes
February 9, 2022
10 Submitted by: Approved by:
_______________________________ _______________________________ Janet Morales, CMC Ben J. Benoit
City Clerk Mayor
CITY OF WILDOMAR CITY COUNCIL
Agenda Item #1.3
CONSENT CALENDAR
Meeting Date: April 13, 2022
______________________________________________________________________
TO: Mayor and City Council Members
FROM: Robert Howell, Administrative Services Director
SUBJECT: Warrant and Payroll Registers
STAFF REPORT
RECOMMENDATION:
Staff recommends that the City Council approve the following:
1. Warrant Registers dated 03-03-2022 in the amount of $921,111.21.
2. Warrant Register dated 03-10-2022 in the amount of $174,930.59.
3. Warrant Register dated 03-17-2022 in the amount of $482,126.76.
4. Warrant Register dated 03-24-2022 in the amount of $228,383.81.
5. Warrant Register dated 03-31-2022 in the amount of $764,945.68.
6. Wire Transfer Register dated 03-31-2022 in the amount of $42,937.96.
7. Payroll Register dated 04-01-2022 in the amount of $178,321.56.
DISCUSSION:
The City of Wildomar requires that the City Council audit payments of demands and direct the City Manager to issue checks. Th e Warrant and Payroll Registers are submitted for approval.
FISCAL IMPACT:
These Warrant, Wire Transfer and Payroll Registers will have a budgetary impact in the amount and fiscal year noted in the recommendation section of this report. These costs are included in the Fiscal Year 2021/22 Budgets.
Submitted by: Approved by:
Robert Howell Dan York
Administrative Services Director City Manager
ATTACHMENTS:
Voucher Registers 03/03/2022 (2) Voucher Register 03/31/2022 Voucher Register 03/10/2022 Wire Transfer Register 03/31/2022 Voucher Register 03/17/2022 Payroll Register 04/01/2022 Voucher Register 03/24/2022
ACH Date Payee Description Amount
3/8/2022 Wright Express Fuel Purchases 201.94$
3/15/2022 Wright Express Fuel Purchases 517.97$
3/17/2022 Golden State Escrow CIP 059 Right of Way Purchase 18,645.00 3/17/2022 Golden State Escrow CIP 059 Right of Way Purchase 10,535.00 3/18/2022 US Bank
Business Travel and Meals, Special
Event Supplies, Repairs &
Maintenance, COVID items, and
Office Supplies
9,735.00
3/21/2022 Enterprise Fleet Management Monthly Lease Payment 3,303.05 TOTAL 42,937.96$
City of Wildomar
Wire Transfer Register
3/31/2022
ACH Date Payee Description Amount
3/3/2022 Heartland Payroll 02/12/2022-2/25/2022 87,189.28$ 3/17/2022 Heartland Payroll 02/26/2022-03/11/2022 89,374.27 3/1/2022 Heartland Payroll 02/01/2022-02/28/2022 1,758.01 TOTAL 178,321.56$
City of Wildomar
Payroll Warrant Register
4/1/2022
CITY OF WILDOMAR – CITY COUNCIL
Agenda Item #1.4
CONSENT CALENDAR
Meeting Date: April 13, 2022
TO: Mayor and City Council Members
FROM: Robert Howell, City Treasurer
SUBJECT: Treasurer’s Report
STAFF REPORT
RECOMMENDATION:
Staff recommends that the City Council approve the Treasurer’s Report for Febr uary 2022.
DISCUSSION:
Attached is the Treasurer’s Report for Cash and Investments for the month of Febr uary 2022. The City utilizes both the California State Treasurer’s Local Agency Investment Fund (LAIF) and the California Asset Management Program (CAMP) for its city investments. Utilizing the two investment programs allows the City to potentially increase the interest earned on the money held.
FISCAL IMPACT:
None.
Submitted by: Approved by:
Robert Howell Daniel York
City Treasurer City Manager
ATTACHMENTS:
Treasurer’s Report
BEGINNING + (-) ENDING
FUND ACCOUNT INSTITUTION BALANCE DEPOSITS WITHDRAWALS BALANCE RATE All All WELLS FARGO # 10,549,826.36 $ 2,606,706.24 (1,723,208.71) $ 11,433,323.89 0.000% TOTAL $ 10,549,826.36 $ 2,606,706.24 $ (1,723,208.71) $ 11,433,323.89
PERCENT
OF DAYS STATED
FUND BOOK VALUE FACE VALUE MARKET VALUE PORTFOLIO TO MAT. RATE All $ 9,671,169.22 $ 9,671,169.22 $ 9,671,169.22 100.00% 0 0.278% All $ 5,594,168.50 $ 5,594,168.50 $ 5,594,168.50 100.00% 0 0.060% TOTAL $ 15,265,337.72 $ 15,265,337.72 $ 15,265,337.72 100.00% CITY $ 26,698,661.61
(-)
+ WITHDRAWALS/
BEGINNING DEPOSITS/ SALES/ ENDING STATED
FUND BALANCE PURCHASES MATURITIES BALANCE RATE
All $ 9,671,169.22 $ 0.00 $ 0.00 $ 9,671,169.22 0.278% All $ 5,593,903.72 $ 264.78 $ 0.00 $ 5,594,168.50 0.060% TOTAL $ 15,265,072.94 $ 264.78 $ 0.00 $ 15,265,337.72
CITY OF WILDOMAR
TREASURER'S REPORT FOR
CASH AND INVESTMENT PORTFOLIO
February 2022
TOTAL CASH AND INVESTMENT
CITY INVESTMENT
In compliance with the California Code Section 53646, as City Treasurer for the City of Wildomar, I hereby certify that sufficient investment liquidity and anticipated revenues are available to meet the City's expenditure requirements for the next six months, and that all investments are in compliance with the City's Statement of Investment Policy.
I also certify that this report reflects all Government Agency pooled investments and all of the City's Bank Balances.
CITY CASH
ISSUER
CALIFORNIA ASSET MANAGEMENT PROGRAM
CALIFORNIA ASSET MANAGEMENT PROGRAM
CITY INVESTMENT (Continued)
LOCAL AGENCY INVESTMENT FUND
LOCAL AGENCY INVESTMENT FUNDS
ISSUER
Robert Howell
Robert Howell
City Treasurer
Date
3/30/2022
CITY OF WILDOMAR – CITY COUNCIL
Agenda Item #1.5
CONSENT CALENDAR
Meeting Date: April 13, 2022
TO: Mayor and Members of the City Council
FROM: Matthew Bassi, Planning Director
SUBJECT: 2
nd Reading of Ordinance No. 214 – The Bakery Retail Cannabis - Development Agreement No. 20-0086
STAFF REPORT
RECOMMENDATION:
The Planning Commission recommends that the City Council adopt an Ordinance entitled:
ORDINANCE NO. 214
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WILDOMAR, CALIFORNIA, ADOPTING A CATEGORICAL
EXEMPTION IN ACCORDANCE WITH SECTION 15301
(CLASS 1) OF THE CALIFORNIA ENVIRONMENTAL QUALITY
ACT (CEQA), AND APPROVING DEVELOPMENT
AGREEMENT NO. 20-0086, SUBJECT TO CONDITIONS, TO
ESTABLISH A 6,345 SQUARE-FOOT RETAIL CANNABIS
BUSINESS WITHIN AN EXISTING RETAIL LEASE SPACE IN
THE C-1/C-P ZONE LOCATED AT 22812 PALOMAR STREET
(SUITE #100 – 103)
DISCUSSION:
The City Council approved the first reading of Ordinance No. 214 at the March 9 , 2022 City Council meeting for Development Agreement No. 20-0086. At this time, it would be appropriate for the City Council to adopt Ordinance No. 214 as presented.
Respectfully Submitted, Reviewed By,
Gary Nordquist Thomas D. Jex
City Manager City Attorney
ATTACHMENT:
A. Ordinance No. 214
ATTACHMENT A
City Council Ordinance No. 214
for
Development Agreement No. 20-0086
ORDINANCE NO. 214
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WILDOMAR, CALIFORNIA, ADOPTING A CATEGORICAL
EXEMPTION IN ACCORDANCE WITH SECTION 15301 (CLASS
1) OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
(CEQA), AND APPROVING DEVELOPMENT AGREEMENT NO.
20-0086, SUBJECT TO CONDITIONS, TO ESTABLISH A 6,345
SQUARE-FOOT RETAIL CANNABIS BUSINESS WITHIN AN
EXISTING RETAIL LEASE SPACE IN THE C -1/C-P ZONE
LOCATED AT 22812 PALOMAR STREET (SUITE #100 – 103)
RECITALS:
WHEREAS, the Planning Department on January 6, 2022 received an application for a Development Agreement 20- 0086 to establish a retail cannabis business within a 6,345 square-foot lease space within an existing multi -tenant commercial retail building located at 22812 Palomar Street (Suite #100 - 103) in the C-1/C-P zone (APN: 380-130- 028):
Applicant/Owner: Wildomar Palomar, LLC (Kendra Minkler) Project Location: 22812 Palomar Street (Suite #100 - 103) APN: 380-130-028
Project Area: 1.51+/- acres
WHEREAS, California Government Code Title 7, Chapter 4, Article 2.5 authorizes the City to enter into development agreements which will provide certainty, definition and commitment to developers as well as to necessary public improvements required by development; and
WHEREAS, pursuant to Chapter 17.315 (Cannabis Businesses) of the Wildomar Municipal Code, the Applicant is required to enter into a Development Agreement for the operation of the Project and said Development Agreement must be approved by the Planning Commission and the City Council; and
WHEREAS, in accordance with Chapter 17.315 of the Wildomar Municipal Code, the Planning Commission held a noticed public hearing on February 2, 2022 to review Development Agreement No. 20-0086, at which time interested persons had an opportunity to testify in support of, or opposition to the proposed development agreement, and at which time the Planning Commission received public testimony, and subsequently adopted PC Resolution No. 2022- 03 recommending City Council approval of Development Agreement No. 20-0086, and
WHEREAS, in accordance with Section 17.192 of the Wildomar Municipal Code, the Planning Department on February 23, 2022 gave public notice to all property owners within a 600- foot radius of the project boundary notifying said property owners of the March 9 , 202 2 City Council meeting at which time the City Council would consider Development Agreement No. 20-0086 to establish the proposed retail cannabis business; and
WHEREAS, in accordance with the Development Agreement application requirements, the Planning Department on February 23, 202 2 gave public notice to all business owners/tenants within the retail center notifying said business owners/tenants of the March 9, 2022 City Council meeting at which time the City Council would consider Development Agreement No. 20-0086 to establish the proposed retail cannabis business; and
WHEREAS, in accordance with Ordinance No. 135, the Planning Department on February 25, 2022 posted a public hearing notice “sign board” along Clinton Keith Road and Palomar Street frontages notifying the neighborhood residents of the March 9, 2022 City Council meeting at which time the City Council would consider Development Agreement No. 20-0086 to establish the proposed retail cannabis business; and WHEREAS, in accordance with Chapter 17.04.050 of the Wildomar Municipal Code, the Planning Department, on February 25, 202 2 published a legal notice in the Press Enterprise, a local newspaper of general circulation, notifying the general public of the March 9, 2022 City Council meeting at which time the City Council would consider Development Agreement No. 20-0086 to establish a retail cannabis business; and WHEREAS, in accordance with Chapter 17.200 and 17.315 of the Wildomar Municipal Code, the City Council conducted a duly noticed public hearing to discuss the proposed Development Agreement No. 20-0086 on March 9, 2022, and at which time interested persons had an opportunity to testify in support of, or opposition to the proposed development agreement, and at which time the City Council received public testimony concerning the proposed development agreement.
THE CITY COUNCIL OF THE CITY OF WILDOMAR HEREBY DOES ORDAIN AS FOLLOWS:
SECTION 1. CEQA ENVIRONMENTAL DETERMINATION.
In accordance with the California Environmental Quality Act (CEQA) Guidelines, the Planning Department evaluated the proposed Development Agreement No. 20-0086 establishing a retail cannabis business within a 6,345 square-foot lease space within an existing multi-tenant commercial retail building located at 22812 Palomar Street ( Suite #100 - 103) located within the C -1/C-P (General Commercial) zone to determine what level of CEQA environmental review is required. Based on this review, the Planning Department determined that approval of Development Agreement No. 20-0086 meets the findings for a Categorical Exemption in accordance with Section 15301 (Existing Facilities, Class 1) of CEQA. Class 1 consists of the operation or minor alteration of existing structures involving negligible expansion of the existing lease space. The applicant has proposed to make tenant improvements to the lease space located at 22812 Palomar Street (Suite #100 - 103) (APN: 380-130-028) as part of the cannabis business operations for which building permits will be required. Therefore, based on this, the City Council hereby adopt s this Categorical Exemption in accordance with Section 15301 (Existing Facilities, Class 1) of CEQA for Development Agreement No. 20-0086.
SECTION 2. MULTIPLE SPECIES HABITAT CONSERVATION PLAN (MSHCP) The City Council hereby finds Development Agreement No. 20-0086 to establish a retail cannabis business within a 6,345 square-foot lease space within an existing multi- tenant commercial retail building located at 22812 Palomar Street (Suite #100 - 103) in the C-1/C-P zone (APN: 380- 130-028) is consistent with the MSHCP, as the project is located outside of any MSHCP criteria area cell, and mitigation is provided through payment of the MSHCP Mitigation Fee.
SECTION 3. GENERAL PLAN CONSISTENCY
The City Council hereby finds and determines that Development Agreement No. 20-0086 is consistent with the General Plan of the City of Wildomar. General Plan policies LU 7.1, 7.2 and 7.12 aim to promote economic development in the City by accommodating development of balanced land uses, promoting a variety of stable employment and business uses, and improving the jobs -housing ratio. Allowing the Project to operate in the City furthers each of these policies.
SECTION 4. DEVELOPMENT AGREEMENT
Based upon the evidence presented and the above findings, the City Council hereby approves Development Agreement No. 20-0086 as illustrated herein and attached hereto to this Ordinance as Exhibit 1. The City Manager is directed to execute Development Agreement No. 20-0086 on behalf of the City.
SECTION 5. RECORDATION OF DEVELOPMENT AGREEMENT
Within ten (10) days after the date upon which the City Manager executes the Development Agreement on behalf of the City, the City Clerk shall record the Development Agreement and this Ordinance with the County Recorder of the County of Riverside.
SECTION 6. SEVERABILITY
If any part of this Ordinance, or the Development Agreement which it approves, is held to be invalid for any reason, such decision shall not affect the validity of the remaining portion of this Ordinance or of the Agreement, and this City Council hereby declares that it would have passed the remainder of the Ordinance, or approved the remainder of the Agreement if such invalid portion thereof had been deleted.
SECTION 7. EFFECTIVE DATE
This ordinance shall take effect thirty (30) days after its passage by the City Council.
SECTION 8. CITY CLERK ACTION
The City Clerk is authorized and directed to cause this Ordinance to be published within fifteen (15) days after its passage in a newspaper of general circulation and circulated within the City in accordance with Government Code Chapter 36933(a) or, to cause this Ordinance to be published in the manner required by law using the alternative summary and posting procedure authorized under Government Code Chapter 39633(c).
APPROVED AND ADOPTED this 13th day of April, 2022.
_____________________
Ben J. Benoit
Mayor
APPROVED AS TO FORM: ATTEST:
____________________________ ___________________________ Thomas D. Jex Janet Morales, CMC
City Attorney City Clerk
EXHIBIT 1
DEVELOPMENT AGREEMENT NO. 20-0086
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Wildomar
23873 Clinton Keith Road, Suite 201
Wildomar, CA 92595
Attn: City Clerk
Space Above Line for Recorder’s Use Only
Exempt from Recording Fees per Gov’t Code § 27383
DEVELOPMENT AGREEMENT
FOR CONDITIONAL USE PERMIT NO. 20-0086
By and Between
CITY OF WILDOMAR
and
WILDOMAR PALOMAR, LLC
APRIL 13, 2022
DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement"), dated for reference purposes as first indicated on the cover page, is entered into by and between the City of Wildomar, a California general law Municipal Corporation ("City") and Wildomar Palomar, LLC, a Limited Liability Corporation, (“Developer”) as follows:
RECITALS
A. The Legislature of the State of California has adopted California Government Code Sections 65864 through 65869.5, which authorizes a city to enter into a binding development agreement with persons having legal or equitable interests in real property located within a city's municipal boundaries for the development of such property in order to, among other things, encourage and provide for the development of public facilities; to support development projects; provide certainty in approval of development projects in order to avoid a waste of resources and escalation in project costs and encourage an investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public land; provide assurance to the applicants for development projects that they may proceed with their projects in accordance with existing policies, rules and regulations and subject to the conditions of approval of such projects as provided in such annexation and/or development agreements.
B. On June 10, 2020, the City Council adopted Ordinance No. 187 establishing zoning and use regulations for cannabis businesses within the City, which includes a requirement that a cannabis business enter into a development agreement with the City prior to commencing operations.
C. D
eveloper is the tenant of that certain real property located at 22812 Palomar Street, Suite #100 - 103 (APN: 380- 130-028) within the City of W ildomar, California hereinafter referred to as the "Property" and as more particularly described herein. Developer proposed to improve, develop and use the Property for a Cannabis Business in accordance with the State Laws and Wildomar Municipal Code (the “Project”) D. The Property is owned by Mr. Eddie Fischer (“Property Owner”). The Property Owner has provided notarized written consent to the terms of this Agreement and the recordation thereof, attached here to as Exhibit C.
E. On November 5, 2020 , the City issued a Cannabis Local License to Developer for the Project pursuant to Chapter 5.76 of the Wildomar Municipal Code, and on January 19, 2022, the City issued a revised Cannabis Local License to Developer for the Project pursuant to Chapter 5.76 of the Wildomar Municipal Code.
F. On February 2, 2022, the Planning Commission considered, at a duly noticed public hearing, and voted to recommend to the City Council adoption of a Categorical Exemption in accordance with Section 15301 (Class 1) of the California Environmental Quality Act (CEQA), and approval of this revised Development Agreement
No. 20-0086 and revised Conditional Use Permit No. 20-0086 to establish a 6,345 square- foot retail cannabis business at the addressed noted herein.
G. On March 9, 2022 the City Council held a duly noticed public hearing and voted to adopt a Categorical Exemption in accordance with Section 15301 (Class 1) of the California Environmental Quality Act (CEQA), for this Development Agreement No. 20-0086 and introduced and had the first reading of Ordinance No. 214 approving this Agreement.
H. On April 13, 2022, the City Council considered and approved Development Agreement No. 20- 0086 by adopting the 2 nd reading of Ordinance No. 214 which becomes effective on May 13, 2022.
I. In adopting this revised Development Agreement, City understands that Developer will acquire certain vested rights regarding development of the Project on the Property and that this Agreement will bind future City Councils to its terms to the extent allowed by law.
J. City acknowledges the benefit the Project will provide to the community and desires to encourage the undertaking and completion of the Project and to provide a greater level of development certainty for the Developer by entering into this Agreement.
K. City finds and determines that it will be in the best interests of its citizens and the public health, safety and welfare will be served by entering into this Agreement.
OPERATIVE PROVISIONS
NOW, THEREFORE , in consideration of the above Recitals and of the mutual covenants and agreements hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby covenant and agree as follows:
1. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following words and phrases shall have the meaning set forth below. Words and phrases not defined herein and defined in City Ordinance Nos. 187 or 188 shall have the meanings ascribed in those ordinances.
1.1 “Action” means any suit (whether legal, equitable, or declaratory in nature), proceeding or hearing (whether administrative or judicial), arbitration or mediation (whether voluntary, court -ordered, binding, or non- binding), or other alternative dispute resolution process, and the filing, recording, or service of any process, notice, claim, demand, lien, or other instrument.
1.2 “Cannabis Business License” means the license to operate a cannabis business issued by the City to the Developer for the Project under Chapter 5.76 of the Wildomar Municipal Code.
1.3 “City” means the City of Wildomar, a general law, municipal corporation formed and existing under the laws of the State of California and any successor -in- interest to the rights, obligations, and powers of the City.
1.4 “Claim or Litigation” means any challenge by any third party (whether legal, equitable, declaratory, administrative or adjudicatory in nature) (i) to the legality, validity or adequacy of the General Plan, Land Use Regulations, this Agreement, Development Approvals or other actions of the City pertaining to the Project, whether such actions are brought under the California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act Code of Civil Procedure Section 1085 or 1094.5, or any other state, federal or local statute, law, ordinance, rule, regulation, or any decision of a court of competent jurisdiction, or (ii) seeking damages against the City as a consequence of the foregoing actions, for the taking or diminution in value of their property or for any other reason.
1.5 “County” means the County of Riverside.
1.6 “Developer” means Wildomar Palomar, LLC, a Limited Liability Corporation, having its principal place of business at 34 Tesla, Suite #200, Irvine, CA 92618, and who is authorized to conduct business, and is doing business, within California. As of the Effective Date of this Agreement, the Developer has entered into a lease agreement with the Property Owner, “Mr. Eddie Fischer.” The term “Developer” shall also include all assignees, to the extent permitted under this Agreement, of the rights and obligations of Developer under this Agreement, and any successor-in-interest to Developer having a legal and/or equitable interest in the Property.
1.7 “Development Costs” means all the costs and expenses which must necessarily be incurred in the design, development, construction and completion of the Project, including but not limited to: predevelopment costs; Developer’s overhead and related costs; design and engineering costs; development costs; construction costs; fees payable to accountants, appraisers, architects, attorneys, biologists, construction managers, engineers, geologists, hydrologists, inspectors, planners, testing facilities, and other consultants; utility connection fees and other utility related charges; costs relating to financing including principal, interest, points, fees and other lender charges; escrow fees and closing costs; recording fees; court costs; costs relating to insurance; costs relating to title insurance; costs relating to bonds; and all other costs and expenses of Developer related to the performance of this Agreement.
1.8 “Development Exaction” means any requirement of the City in connection with or pursuant to any Land Use Regulation or Existing Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests, consistent with this Agreement.
1.9 “Development Impact Fees” means those development impact fees imposed and levied by the City to recover the cost of planned public facilities and to mitigate impacts of projects on the City.
1.10 “Effective Date” means the date upon which the Ordinance approving this Agreement becomes effective, which date is thirty (30) days following the date the City Council adopted such Ordinance absent a referendum challenge, and provided that the Agreement has been fully executed by the Parties.
1.11 “Existing Development Approval(s)” means all land use development permits and approvals issued, approved, and/or certified by the City Council, Planning Commission, Planning Director, or Building Official, including those development approvals listed in Recital E, but al so including any land use or building permits and approvals issues, approved, and/or certified as of the Effective Date of this Agreement by the City Council, City’s Planning Commission, Planning Director or Building Official for the Project.
1.12 “Existing Land Use Regulation” means a Land Use Regulation existing, effective, and made a matter of public record as of the Effective Date of this Agreement.
1.13 “General Plan” means the City’s General Plan as of the date of this Agreement, as amended.
1.14 “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations, and official policies of City, governing the development and use of land including without limitation, the permitted use of land; the density or intensity of use; subdivision requirements; the maximum height and size of proposed buildings; the provisions for reservation or dedication of land for public purposes; and the design, improvement, and construction standards and specifications applicable to the development of the Property which have been adopted and are effective and are a matter of public record as of the Effective Date of this Agreement. “Land Use Regulations” does not include any County or City ordinance, resolution, code, rule, regulation, or official policy, governing:
(a) The licensing or regulation of businesses, professions, and occupations;
(b) Sales taxes, ad valorem property taxes, or voter approved general or special taxes and assessments;
(c) The control and abatement of nuisances;
(d) The granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; and/or
(e) The exercise of the power of eminent domain.
1.15 “Litigation Expenses” means all costs and expenses, to the extent such are reasonable in amount, that are actually and necessarily incurred in good faith by the Prevailing Party directly related to the Action, including, but not related to, court costs, filing, recording, and service fees, copying costs, exhibit production costs, special media rental costs, attorneys’ fees, consultant fees, fees for investigators, witness fees (both lay and expert), travel expenses, deposition and transcript costs, and any other cost or expense reasonably and necessarily incurred by the prevailing party in good faith and directly related to the Action. Where attorneys’ fees are to be paid by Developer to the City’s law firm on behalf of, or in defense of, City, the rate to be paid shall be the full litigation rate charged by the City’s law firm to the City in accord with the City’s contract with that law firm.
1.16 “Project” means that certain retail cannabis business development proposed by Wildomar Palomar, LLC, a Limited Liability Corporation, consisting of a 6,345 square foot retail cannabis business located at 22812 Palomar Street, Suite #100 - 103 (APN: 380-130-028) within the City of Wildomar, as permitted under, and as more fully described, in the Existing Development Approvals.
1.17 “ Property” means a certain real property located at 22812 Palomar Street, Suite #100 - 103 (APN: 380 -130-028) within the City of Wildomar, California, as more particularly described in the legal description in Attachment 1 and depicted in Attachment 2 both of which are attached hereto and incorporated herein by this reference.
1.18 “Property Owner” means “Mr. Eddie Fischer”.
1.19 “Public Improvement” means those public improvements, including but not limited to, streets, streetlights, traffic signals, curbs, gutters, sidewalks, parkway landscaping, irrigation systems, storm drains, sewers, and other public facilities directly related to the Project and required to be constructed and installed in the existing public rights-of-way and/or on areas of the Project to be dedicated to the City by Developer as specifically required under the Existing Development Approvals.
1.20 “Regional Fees” means fees and charges imposed or levied by any other public agency, regional agency, utility, district or joint powers authority, regardless of whether City collects those fees and charges, including, but not limited to, Transportation Uniform Mitigation Fee (TUMF), Multiple Species Habitat Conservation Plan (MSHCP), ADP and K-Rat.
1.21 “Subsequent Development Approvals” means any ministerial and discretionary permits, licenses, or other similar entitlements or approvals that must be secured by the Developer in order to develop the Project on the Property other than the Existing Development Approvals and Cannabis Business License. Subsequent Development Approvals include any changes to the Existing Development Approvals
1.22 “Subsequent Land Use Regulation” means any Land Use Regulation adopted, effective, and made a matter of public record after the Effective Date of this Agreement.
2. VESTING AND SCOPE OF DEVELOPMENT
2.1 Vesting. During the Term of this Agreement, Developer shall be entitled to, and vested with the right to, develop the Project on the Property, subject to the terms and conditions of this Agreement, the Existing Development Approvals, any Subsequent Development Approvals, the Cannabis Business License, Land Use Regulations and State laws.
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erm . The term of this Agreement shall commence on the Effective Date and shall be for an initial period of twenty (20) years. This Agreement shall terminate and be of no force and effect upon the occurrence of the entry of a final judgment or issuance of a final order after exhaustion of any appeals directed against the City as a result of any lawsuit filed against the City to set aside, withdraw, or abrogate the approval by the City Council of City of this Agreement.
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ubsequent Development Approvals . Successful implementation of the Project may require the Developer to obtain additional approvals and permits from City.
In connection with the consideration and issuance of any such Subsequent Development Approval which is not ministerial in nature, the City reserves its discretion under the police power to approve, conditionally approve, or deny the issuance of each Subsequent Development Approval.
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evelopment Costs. Developer shall be solely responsible for payment of all Development Costs incurred in connection with developing the Project on the Property.
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chedule of Performance . Developer shall, in good faith, use commercially reasonable efforts to undertake, commence, and thereafter diligently pursue to completion, the development of the Project. The parties acknowledge that Developer cannot at this time specifically predict when, or the rate at which, the Project will be constructed and completed. Such decisions depend upon numerous factors, which are not within the control of Developer, such as market orientation and demand, availability of financing, interest rates, absorption, competition, and other similar market factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later -adopted initiative restricting the timing of development to prevail over such parties, it is the intent of City and Developer to cure any possible deficiency in this Agreement arising from the same legal infirmity, by acknowledging and providing that the Developer shall have the right to develop Project on the Property in such order, at such rate, and at such times during the Term of the Agreement, as the Developer deems appropriate within the exercise of its independent business judgment.
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eveloper’s Representations and Warranties. Developer represents and warrants that, to the best of its knowledge, the following are accurate and true as of the Effective Date of this Agreement:
2.6.1 Title and Possession. Developer leases said Property located at 22812 Palomar Street, Suite #100 - 103 (APN: 380-130-028) within the City of Wildomar, California, and is the sole person in legal possession of the lease space. All other persons holding legal or equitable interests in the Property shall be bound by this Agreement.
2.6.2 N o Legal Actions. No Action to acquire, partition, or quiet title or any interest in the Property, or any Action that is reasonably likely to impair, encumber, or otherwise adversely impact title to the Property or Developer’s rights, title, or interest to or in the Property is pending or otherwise imminent (including written threats to commence such Action), and to the best of Developer’s knowledge there are no facts upon which a third party could reasonably base, maintain, or threaten such an Action.
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o Legal Impediments to Agreement. No contract, lease, or other agreement, whether recorded or unrecorded, bars, prohibits, limits or otherwise impairs Developer’s ability to enter into this Agreement and to encumber the Property with this Agreement.
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ooperation. City agrees that it shall accept for processing and promptly take action on all applications for Implementing Approvals, provided they are in a proper form and acceptable for required processing in accordance with the Existing Development Approvals and the provisions of this Agreement.
3. PUBLIC BENEFITS
3.1 Public Benefit. The parties acknowledge and agree that this Agreement confers private benefits on the Developer that should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on the Developer by imposition of the Development Agreement Fee set forth in Section 3.2 hereof. City acknowledges, as partial consideration for this Agreement, the Development Agreement Fee will be payable by Developer as provided in Section 3.2 hereof which fe e will be utilized to further mitigate the impact of the Project and provide community benefits, as determined by the City Council. The provisions of this Section 3 are material terms of this Agreement, and failure by Developer to fulfill any of its obligations in this Section 3 shall be a material breach of this Agreement.
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evelopment Agreement Fee . On the date upon which the City of Wildomar issues the certificate of occupancy for the Project on the Property (the “Store Opening Date”), and on each anniversary thereafter, the Developer shall pay to the City a Development Agreement Fee as follows:
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wenty dollars ($20.00) per gross square foot of floor area based on a 6,345 square-foot lease space (as noted in the Development Agreement application package) within any building, facility or structure utilized for the proposed Cannabis Business. Beginning on the first anniversary of the Effective Date, and quarterly thereafter, the portion of this Development Agreement Fee shall be automatically adjusted based on the average percentage change in the Consumer Price Index (CPI) for “all urban
consumers” in the Riverside- San Bernardino-Ontario area, or a subsequent Consumer Price Index (CPI) area covering the City, for the previous January to December period.
3.2.2 I n addition, the following amounts shall be paid to the City based on the quarterly (1/4) gross receipts of the Cannabis Business commencing on the first quarterly (1/4) anniversary of the Store Opening Date and quarterly (1/4) thereafter as follows:
3.2.2.1 1st anniversary through 5 th anniversary: 3% of gross receipts/quarter.
3.2.2.2 6th anniversary through 20th anniversary: 5% of gross receipts/quarter unless the City and Developer agree to a different amount and as approved by the City Council prior to the 6 th anniversary of the Effective Date.
3.2.3 City and Developer hereby agree to engage in good faith negotiations during the 5 th year of this Development Agreement regarding the Development percentage fee noted above.
3.2.4 The City shall have the power to audit and examine all books and records of the Developer, as well as persons engaged in the operation of the Cannabis Business, including both state and federal income tax returns, California sales tax returns, or other evidence documenting the gross receipts of the Cannabis Business for the purpose of ascertaining the amount of the Development Agreement Fee required to be paid by Developer under this Section.
3.2.5 In the event that during the Term of this Agreement the voters of the City approve a cannabis tax, then the Development Agreement Fee shall no longer be due and payable from the date the cannabis tax takes effect through the remainder of the Term.
3.3 Other Fees. In addition to the Development Agreement Fee, Developer agrees to pay all Regulatory Fees, Development Impact Fees, and any other applicable fees to the City related to the development of the Project on the Property.
4. APPLICABLE LAWS AND REGULATIONS; RESERVATION OF AUTHORITY
4.1 Existing Land Use Regulations . The Existing Land Use Regulations shall be applicable to the Project. Any change in, or addition to, the Existing Land Use Regulations, including without limitation, any change in any applicable City general or specific plan, zoning or building regulation, adopted or becoming effective after the Effective Date of this Agreement, including, without limitation, any change by means of ordinance, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, Planning Commission or any other Board, Commission or Department of the City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict or be
inconsistent with in any way the Existing Land Use Rules or the Existing Land Use Approvals or this Agreement, shall not be applied to the Project, subject to the Reservation of Authority set forth in section 4.3 hereof.
4.2 Federal and State Laws. Notwithstanding any other provision in this Agreement to the contrary, the Project shall be subject to subsequently enacted state or federal laws or regulations that may preempt the City’s ordinances, resolutions, rules, regulations, and policies, or require the same be amended, or require the City to adopt new ordinances, resolutions, rules, regulations, and policies. As provided in section 65869.5 of the California Government Code, in the event state or federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. Upon discovery of a subsequently enacted federal or state law meeting the requirements of this Section, City or Developer shall provide the other Party with written notice of the state or federal law or regulation, and a written statement of the conflicts thereby raised.
Promptly thereafter, City and Developer shall meet and confer in good faith in a reasonable attempt to modify this Agreement, as necessary, to comply with such federal or state law or regulation provided City shall not be obligated to agree to any modification materially increasing its obligations or materially adversely affecting its rights and benefits hereunder. In such discussions, City and Developer will attempt to preserve the terms of this Agreement and the rights of Developer derived from this Agreement to the maximum feasible extent while resolving the conflict. If City, in its judgment, determines it necessary to modify this Agreement to address such conflict, City shall have the right and responsibility to do so, and shall not have any liability to Developer for doing so or be considered in breach or default of this Agreement. City also agrees to process, in accordance with the provisions of this Agreement, Developer’s proposed changes to the Project that are necessary to comply with such federal or state law and that such proposed changes shall be conclusively deemed to be consistent with this Agreement without further need for any amendment to this Agreement.
4.3 R
eservation of Authority . Notwithstanding any other provision of this Agreement, the City reserves its authority to impose any of the following rules, policies, regulations, ordinances, or requirements on development of the Project:
4.3.1 F
iling and Processing Fees . Developer shall pay all customary and typical filing and permit processing fees imposed for Subsequent Development Approvals as required under ordinances and resolutions then in effect.
4.3.2 D
evelopment Impact Fees . Development impact fees or charges imposed by the City on and in connection with a development or other similar fees or charges imposed by other governmental entities regardless of whether the City is required to collect or assess such fees pursuant to applicable laws (e.g., school district impact fees pursuant to Government Code Section 65995)..
4.3.3 Procedural Requirements. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure.
4.3.4 T axes of General Applicability. Any law, ordinance, or resolution that imposes a general or special tax of general applicability to be applied uniformly to business and/or development in the City, whether such tax is for licensing or other purposes.
4.3.5 U
niform Codes. This Agreement does not prevent the City from adopting and amending in compliance with State law certain uniform codes or uniform standards which are based on recommendations of a multi -state professional organization, and which become applicable throughout the City -- including the Project and the Property subject to this Agreement. Such Uniform Codes include, but are not limited to, the Uniform Building Code, Uniform Mechanical Code, National Electrical Code, Uniform Fire Code, and uniform standards for the construction of public works.
4.3.6 R
egulation by Other Public Agencies . It is acknowledged by the parties that other public agencies not within the control of City possess authority to regulate aspects of the development of the Property separately from or jointly with City and this Agreement does not limit the authority of such other public agencies.
4.4 C
hanges and Amendments . Substantial changes to the Project or the Existing Development Approvals and amendments of this Agreement shall be subject to the following:
4.4.1 A
mendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual consent of the parties and in the manner provided for in Government Code Sections 65868, 65867, and 65867.5. The provisions of this Section do not impact the right of the City to terminate this Agreement because of Developer's breach or failure to comply in good faith with the requirements of this Agreement.
4.4.2 Re
view by City Council. Any amendment to this Agreement shall require review and approval by the City Council.
5. RIGHTS OF MORTGAGEES.
5.1 Mortgagee Protection. Neither entering into this Agreement nor committing a Default under this Agreement shall defeat, render invalid, diminish, affect the priority or impair the lien of Mortgagees having a Mortgage on any portion of the Property made in good faith and for value. No Mortgagee shall have an obligation or duty under this Agreement to perform Developer's obligations, or to guarantee such performance prior to any foreclosure or deed in lieu of foreclosure, but upon acquiring the right to possession pursuant to a Mortgage on the Property or any portion thereof, the Mortgagee shall be subject to the terms and conditions of this Agreement. Notwithstanding the foregoing, Mortgagee shall have no obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction or
completion thereof; provided, however, that Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those improvements provided for or authorized by this Agreement. The term of this Agreement shall not be extended based on the fact that a Mortgagee held title to the Property for all or any part of the term of this Agreement.
5.2 Notice of Default to Mortgagee; Right to Cure.
5.2.1 If the City Clerk timely receives notice from a Mortgagee requesting a copy of any Notice of Default given to Developer under the terms of the Agreement, the City shall provide a copy of that notice to the Mortgagee concurrently with sending the Notice of Default to Developer. City shall have no liability for damages or otherwise to Developer, Developer's successor, or to any Mortgagee or successor therefor for failure to provide such notice.
5.2.2 The Mortgagee shall have the right, but not the obligation, for a period up to ninety (90) days after the receipt of such notice from the City to cure or remedy, or to commence to cure or remedy, the Default unless a further extension of time to cure is granted in writing by the City. However, a Mortgagee, to avail itself of the rights provided by this Section, must notify the City in writing of its intent to attempt to remedy or cure within forty -five (45) days of the date of the Notice of Default from City to Mortgagee. A failure by a Mortgagee to provide such timely notice to City shall extinguish the rights and protections provided by this Section. If the Default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee shall seek to obtain possession with diligence and continually through foreclosure, a receiver, or otherwise, and shall thereafter remedy or cure the Default within ninety (90) days after obtaining possession. If the Default cannot, with diligence, be remedied or cured within this ninety (90) day period, then the Mortgagee shall have such additional time as the City Council determines is reasonably necessary to remedy or cure the Default if the Mortgagee commences cure during the ninety (90) day period and thereafter diligently pursues and completes the cure.
5.2.3 Such diligence by the Mortgagee on effectuating such cure shall be reviewed by the City Council every thirty (30) days thereafter until any and all Defaults are cured. If at any such review, the City Council determines that the Mortgagee is not making good faith efforts to cure any and all Defaults, the City Council shall have the authority to terminate this Agreement.
5.3 Cure by Mortgagee . In the event any obligation of Developer is for the payment of money or fees, other than standard permit or processing fees, and a Default is declared by City based upon such failure to pay, a Mortgagee may be granted an extended time to remedy or cure until such time as Mortgagee obtains possession of the Property; provided, Mortgagee agrees that any money due City which remains unpaid shall bear the higher of the legal rate of interest or the Consumer Price Index as the measure of inflation.
5.4 Mortgagee Rights. The parties hereto agree that this Agreement shall not prevent or limit Developer, in any ma nner, at Developer's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust, or other security device securing financing with respect to the Property. City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with the Developer and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Developer shall reimburse City for any and all of City's reasonable costs associated with said negotiations, interpretations, and modifications and shall make reimbursement payments to City within thirty (30) days or receipt of an invoice from City.
Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law or specified herein.
6. INDEMNITY, INSURANCE AND RELEASE
6.1 Participation in Litigation: Indemnity . The Developer shall indemnify, protect and defend the City and its elected boards, commissions, officers, agents and employees (each, an “Agent”) and will hold and save them and each of them harmless from any and all Claims or Litigation (including but not limited to reasonable attorneys’ fees and costs) against the City and/or Agent for any such Claims or Litigation and shall be responsible for any judgment arising therefrom. The City shall provide the Developer with notice of the pendency of such action and shall request that the Developer defend such action. The Developer may select legal counsel providing the Developer’s defense and it is expressly agreed that the City shall have the right to approve separate legal counsel providing the City’s defense. The Developer shall reimburse City for any reasonable attorneys’ fees, costs and expenses directly and necessarily incurred by the City in the course of the defense. Developer agrees that City will forward monthly invoices to Developer for attorneys’ fees, costs and expenses it has incurred related to its defense of any Claim or Litigation and Developer agrees to timely payment within thirty (30) days of receipt of the invoice. Developer agrees to post adequate security or a cash deposit with City in an amount to cover the City’s estimated attorneys’ fees, costs and expenses incurred by City in the course of the defense in order to ensure timely payment of the City’s invoices. The amount of the security or cash deposi t shall be determined by the City. City shall cooperate with Developer in the defense of any Claim or Litigation.
The Developer’s obligation to pay the cost of the action, including judgment, shall extend until judgment. After judgment in a trial court, the Parties may mutually agree as to whether any appeal will be taken or defended. The Developer shall have the right, within the first 30 days of the service of the complaint or judgment in a trial court, in their sole and absolute discretion, to determine they do not want to defend any litigation, or appeal any judgment, attacking this Agreement or the Development Approvals in which
case the City shall allow the Developer to settle the litigation on whatever terms the Developer determine, in their sole and absolute discretion, but Developer shall confer with City before acting and cannot bind City. In that event, the Developer shall be liable for any costs incurred by the City up to the date of settlement but shall have no further obligation to the City beyond the payment of those costs. In the event of an appeal, or a settlement offer, the Parties shall confer in good faith as to how to proceed.
6.2 Survival of Indemnity Obligations . All indemnity provisions set forth in this Agreement shall survive termination of this Agreement for any reason other than the City’s Default.
6.3 I
nsurance . Developer shall maintain insurance in the amounts and of the types that are acceptable to the City as required under the Cannabis Business License.
6.4 R elease. Except for non- damage remedies, including the remedy of specific performance as provided for in Section 8.6 [Legal and Equitable Actions], Developer, for itself, its successors and assignees, hereby releases the City, its officers, agents, and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the City because it entered into this Agreement or because of the terms of this Agreement. Developer further acknowledges that, as an instrument which must be approved by ordinance, a development agreement is subject to referendum; and that, under law, the City Council's discretion to avoid a referendum by rescinding its approval of the underlying ordinance may not be constrained by contract, and Developer waives all claims for damages against City in this regard.
7. PERIODIC REVIEW PROCEDURE
7.1 Timing. Pursuant to Government Code § 65865.1, City shall review this Developer’s compliance with the terms, conditions, and covenants of this Agreement.
Such review shall be undertaken at least once during every twelve (12) month period from the Effective Date of this Agreement. The Developer or successor shall reimburse City for the reasonable and necessary costs of this review, excluding cost incurred under Article 8.0 [Default and Enforcement], within thirty (30) days of written demand from City.
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vidence for Annual Review . Developer shall deliver to City within thirty (30) days of each anniversary of the Effective Date evidence to demonstrate the Developer’s good faith compliance with the terms of this Agreement, including but not limited to compliance with the payment obligations in Section 3 of this Agreement. The City shall bear no responsibility or obligation to research, investigate, or otherwise obtain evidence of Developer’s good faith compliance with this Agreement. It shall be Developer’s sole responsibility and obligation to provide evidence of its good faith compliance with this Agreement. Prior to making a determination, the City shall make available to the Developer any public staff reports and documents to be used or relied
upon by City to determine Developer’s good faith compliance with this Agreement. The Developer shall be permitted an opportunity to respond to the City’s evaluation of its performance, either orally or at a public hearing or in a written statement. Such response shall be made to the Director or its designee for purposes of review of compliance with this Agreement.
7.3 Certificate of Compliance. With respect to each year for which an annual review of compliance with this Agreement is conducted, and for which the City has determined that Developer is in good faith compliance with this Agreement, the City, upon written request of the Developer, shall provide Developer with a written certificate of good-faith compliance, in recordable form, duly executed and acknowledged by the City. The Developer shall have the right, in the Developer’s sole discretion, to record this notice of compliance.
8. DEFAULT AND ENFORCEMENT
8.1 Default. Either party’s failure or unreasonable delay in performing any term, provision or covenant of this Agreement constitutes a Default of this Agreement.
In the event of a Default, the injured party shall give written “Notice of Default” to the defaulting party, specifying the Default. If the defaulting party fails to cure the Default within forty-five (45) business days after receipt of a Notice of Default, or, if the Default is of a nature that cannot be cur ed within forty -five (45) business days, the defaulting party fails to commence to cure the Default within said forty-five (45) business days and thereafter diligently prosecute such cure to completion, then the defaulting party shall be liable to the inju red party for any and all damages caused by such Default, unless otherwise provided for by this Agreement.
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efault by Developer . Developer is in default under this Agreement upon the happening of one or more of the following events or conditions and failure to cure such default in accordance with Section 8.1 hereof:
8.2.1 If a warranty, representation, or statement made or furnished by Developer to City is false or proves to have been false in any material respect when it was made.
8.2.2 More than forty-five (45) days have passed since City's making of a written request to Developer for payment or reimbursement for a fee or service authorized or agreed to pursuant to this Agreement.
8.2.3 A finding and determination by City that upon the basis of information provided by Developer, and reviewed and investigated by City, the Developer has not complied in good faith with one or more of the material terms or conditions of this Agreement.
8.2.4 Developer failed to substantially comply with any material term, condition, or covenant of this Agreement, including failing to timely provide the evidence required under Section 7.2 of this Agreement.
8.3 Default by City. If City has failed to cure it’s Default after notice and an opportunity to cure as provided in Section 8.1. [Default], Developer may pursue any legal or equitable remedy available to it under this Agreement without further notice to City, except as may be required under the law for service of summons and other legal papers.
It is acknowledged by the parties that City would not have entered into this Agreement if City was to be subject to or liable for monetary damages under or with respect to this Agreement or the application thereof. Developer, for himself or any successor thereto, expressly waives the right to seek monetary damages against the City or any officer, employee, or agent thereof, for any default or breach of this Agreement. Developer covenants and agrees not to sue for or claim any damages including monetary damages for any purported breach of this Agreement by City.
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o Recovery for Monetary Damages. As part of the bargained for consideration for this Agreement, the Parties agree that any action or proceeding to cure, correct or remedy any Default or to enforce any covenant or promise herein shall be limited solely an d exclusively to those remedies expressly provided herein. City and Developer may institute legal or equitable proceedings to cure, correct or remedy any Default, or to enforce any covenant or promise herein, enjoin any threatened or attempted violation, or enforce by specific performance, declaratory relief or writ of mandate the obligations and rights of the Parties hereto. In no event shall Developer or City, or any of their officers, agents, representatives, officials, employees or insurers, be liable to Developer or City for damages for any breach or violation of this Agreement.
The enforceability and validity of the above limitations on the remedies available to the Parties, including, without limitation, the specific provision prohibiting the recovery of damages, is part of the bargained for, negotiated consideration for the City’s agreement to enter into this Agreement, and it is acknowledged that the City would not have entered this Agreement if it were to be liable in damages under this Agreement . In the event Developer seek or accept damages in any action or proceeding brought for breach or violation of this Agreement or to enforce any provision hereof, such award shall destroy the consideration supporting the City’s agreement to enter into this Agreement, and shall, in turn, entitle the City to immediately impose whatever terms, conditions, ordinances, fees and/or exactions the City deems appropriate, and further shall entitle the City, at its option, to undertake to revoke any entitlements granted pursuant to this Agreement, irrespective of any provision to the contrary contained herein. Accordingly, the remedy of monetary damages is not available to any Party except as provided below.
For purposes of enforcement, stated positively, the Parties shall have the equitable remedies of specific performance, injunctive and declaratory relief, or a mandate or other action determining that the City has exceed its authority, and similar remedies, other than recovery of monetary damages, to enforce their rights under this Agreement. The Parties shall have the right to recover their attorney fees and costs in such action.
In the event the Developer fails to perform any monetary obligation under this Agreement, City may sue for the payment of such sums to the extent due and payable.
The Developer shall pay interest thereon at the lesser of: (i) five percent (5%) per annum, or (ii) the maximum rate permitted by law, from and after the due date of the monetary obligation until payment is actually received by the City.
8.5 Waiver. Failure or delay in giving Notice of Default, or failing to commence a legal or equitable action as a result of the Default, shall not waive a Party's right to give future Notice of the same or any other Default.
8.6 Le gal and Equitable Actions . In addition to any other rights and remedies, any party may institute a legal action to require the cure of any Default and to recover damages (except as otherwise provided herein) for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. The following provisions shall apply to any such legal action:
8.6.1 J
urisdiction and Venue. Legal actions must be instituted and maintained in the Superior Court of the County of Riverside, Central Division, State of California, or in the United States District Court for the Central District of California.
Developer specifically waives any rights provided to it pursuant to California Code of Civil Procedure § 394 or federal or state statutes or judicial decisions of like effect.
8.6.2 A
pplicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement.
8.6.3 Li tigation Expenses. In the event either party commences an Action against the other party which arises out of a Default of, breach of, failure to perform this Agreement or otherwise related to this Agreement, then the Prevailing Party in the Action shall be entitled to recover its Litigation Expenses from the other party in addition to whatever relief to which the prevailing party may be entitled. For the purposes of this Section, the term “Prevailing Party,” shall have the meaning ascribed in Code of Civil Procedure §1032(a)(4).
8.6.4 S
pecific Performance Remedy . The City and Developer agree that damages would not be an adequate remedy if the City fails to carry out its obligations under this Agreement. Therefore, no money damages are available against City, or any officer, employee, or agent thereof. Specific performance of this Agreement is necessary to compensate Developer if the City fails to carry out its obligations under this Agreement.
8.7 R
emedies are Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by a party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different time, of any other rights or remedies for the same Default or any other Default by another Party.
8.8 T
ermination. This Agreement shall terminate upon the occurrence of any of the following:
8.8.1 Expiration of the term stated in section 2.2;
8.8.2 Mutual written consent of the parties;
8.8.3 Conditional Use Permit No. 20-0086 expires pursuant to Wildomar Municipal Code Section 17.200.060, or is revoked pursuant to Wildomar Municipal Code Section 17.200.070;
8.8.4 Developer’s Cannabis Business License or State License is revoked, or Developer fails to timely renew its Cannabis Business License or State License and Developer is without either license for a period of at least thirty (30) consecutive days after receiving written notice that said license has been revoked or has not been renewed;
8.8.5 Entry of a final judgment by a court of competent jurisdiction setting aside, voiding or annulling the adoption of the ordinance approving this Agreement;
8.8.6 The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement;
8.8.7 Developer no longer has a legal or equitable interest in the Property or has ceased operating the Project on the Property, for a period of at least thirty (30) consecutive days;
8.8.8 Developer (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein in violation of this Agreement and fails to cure such default within the time set forth in Section 8.1 [Default] hereof;
8.8.9 Developer is otherwise in material Default of this Agreement and fails to cure such Default within the time set forth in Section 8.1 [Default] hereof.
8.9 Revocation of CUP. The execution and recordation of this Agreement is a condition of approval of Conditional Use Permit No. 20-0086 pursuant to Section
17.315.080(A)(7) of the Wildomar Municipal Code. Developer understands and agrees that termination of this Agreement pursuant to Section 8.8 constitutes good cause for the City to revoke Conditional Use Permit No. 20-0086.
9. GENERAL PROVISIONS
9.1 Waiver of Challenges. In exchange for the vested right to develop pursuant to this Agreement, Developer expressly waives for himself and for any successor thereto, the right to challenge or contest the validity of any condition of approval attached to any entitlement which is a part of the Existing Development Approvals.
9.2 B
ankruptcy . The obligations of this Agreement shall not be dischargeable in bankruptcy.
9.3 A ssignment . The rights and obligations of Developer hereunder shall not be assigned or transferred, except that on thirty (30) days written notice to City, Developer may assign all or a portion of Developer’s rights and obligations there under to any person or persons, partnership or corporation who purchases all or a portion of Developer’s right, title and interest in the Property, or Project, provided such assignee or grantee assumes in writing each and every obligation of Developer hereunder yet to be performed, and further provided that Developer obtains the written consent of City to the assignment, which consent shall not be unreasonably withheld. No assignment shall be consented to by City until the assignee has obtained a Cannabis Business License from
the City for the Project. Notwithstanding the foregoing provision concerning the written consent of City, and provided that the assignment is to an affiliate of Developer (an entity which is controlled by, controls, or is under common control with, Developer), t he City shall in such cases provide its written consent provided that all other requirements of this section are satisfied. The notice to City shall include the identity of any such assignee and a copy of the written assumption of the assignor’s obligations hereunder pertaining to the portion assigned or transferred. After such notice and the receipt of such consent, the assignor shall have no further obligations or liabilities hereunder. The City Manager may act on behalf of City regarding any actions concerning the assignment of this Agreement.
9.4 Enforced Delays; Extension of Times. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults are due to: litigation challenging the validity of this transaction or any element thereof or the right of either party to engage in the acts and transactions contemplated by this Agreement; inability to secure necessary labor materials or tools; delays of any contractor, sub- contractor or supplier; or withdrawal of financing not caused by any act or omission of Developer; war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental agency or entity (other than the acts or failures to act of the City which shall not excuse performance by the City); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period or the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within forty -five (45) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the City and Developer.
9.5 B
inding Effect of Agreement . The burdens of this Agreement bind, and the benefits of the Agreement inure to the successors -in-interest to the parties to it in accordance with the provisions of and subject to the limitations of this Agreement.
9.6 P roject as a Private Undertaking/Relationship of Parties. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants, and conditions contained in this Agreement. No partnership, joint venture, or other association of any kind is formed by this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property and the Developer of such property.
9.7 Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by registered mail, postage prepaid to the person and address provided below. Delivery shall be presumed delivered upon actual receipt by personal delivery or within three (3) days following deposit thereof in United States Mail or within two (2) days of delivery by facsimile, provided that if notice is by facsimile, then a copy of the notice shall also be contemporaneously sent by regular mail, postage prepaid to the person and address provided below.
Notice required to be given to City shall be addressed as follows:
To City: City of Wildomar
Attn: Daniel A. York, City Manager
23873 Clinton Keith Road, Suite 201
Wildomar, CA 92595
Facsimile: (951) 698-1463
With a copy to: City Attorney
Attn: Thomas D. Jex
1770 Iowa Ave., Suite 240
Riverside, CA 92507
Facsimile: (951) 788-5785
Notices required to be given to Developer shall be addressed as follows:
To Developer: Mark Malatesta, Developer
Wildomar Palomar, LLC
34 Tesla, Suite #200
Irvine, CA 92618
A party may change the address by giving notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address.
9.8 Further Actions and Instruments . Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent necessary to implement this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. In the event Developer or Developer's successor requires supplemental or additional agreements for purposes of securing financing or similar purposes, City will endeavor to assist in this respect, provided, however, Developer or Developer's successor shall reimburse the City for any and all costs associated with processing, reviewing, negotiating, or acting on such agreements.
Developer or Developer's successor agrees to reimburse City within thirty (30) days of written demand therefor.
9.9 No Third Party Beneficiaries . This Agreement is for the sole and exclusive benefit of the City and Developer. No other parties or entities are intended to be, or shall be considered, a beneficiary of the performance of any of the parties’ obligations under this Agreement.
9.10 E
ntire Agree ment. This Agreement and the attachments hereto contain the complete, final, entire, and exclusive expression of the agreement between the parties hereto, and are intended by the parties to completely state the agreement in full.
Any agreement or representation respecting the matters dealt with herein or the duties of any party in relation thereto not expressly set forth in this Agreement shall be null and void.
9.11 R
ecitals and Definitions . The Recitals and Definitions set forth at the beginning of this Agreement are a substantive and integral part of this Agreement and are incorporated by reference in the Operative Provisions portion of this Agreement.
9.12 I
ntegration. This Agreement constitutes the entire understanding and agreement of the parties and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof.
9.13 T
itles and Captions . Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or any of its terms. References to section numbers are to Sections of this Agreement unless expressly stated otherwise.
9.14 I
nterpretation . City and Developer acknowledge that this Agreement is the product of mutual arms -length negotiation and drafting and each represents and warrants to the other that it has been represented by legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of construction that provides that the ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Agreement. In any action or proceeding to interpret or enforce this Agreement, the finder of fact may refer to such extrinsic evidence not in direct conflict with any specific provision of this Agreement to determine and give effect to the intention of the parties hereto.
9.15 C
omputation of Time . The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens) and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term “holiday” shall mean all holidays as specified in Government Code § 6700 and § 6701. If any act is to be done by a particular time during a day, that time shall be Pacific Standard Zone time
9.16 S
everability . Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and/or in part, in this Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Agreement and shall not affect any other
provision, term, condition, covenant, and/or restriction, of this Agreement and the remainder of the Agreement shall continue in full force and effect.
9.17 Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and the Developer. Clarifications to this Agreement and the Existing Land Use Regulations may be appropriate with respect to the details of performance of the City and the Developer. To the extent allowable by law, the Developer shall retain a certain degree of flexibility as provided herein with respect to all matters, items and provisions covered in general under this Agreement, except for those which relate to the (i) term; (ii) permitted uses; or (iii) density or intensity of use.
When and if the Developer finds it necessary or appropriate to make changes, adjustments or clarifications to matters, items or provisions not enumerated in (i) through (iii) above, the Parties shall effectuate such changes, adjustments or clarifications through operating memoranda (the “Operating Memoranda”) approved by the Parties in writing which reference this Section 9.17. Operating Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial clarifications; therefore public notices and hearings shall not be required. The City Manager shall be authorized, upon consultation with, and approval of, the Developer, to determine whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such character to constitute an amendment to this Agreement which requires compliance with the provisions of Section 9.18 below.
9.18 A
mendments to Agreement . Each Party agrees to consider reasonable requests for amendments to this Agreement which may be made by the other Party, lending institutions, bond counsel or financial consultants. Any amendments to this Agreement must be in writing and signed by the appropriate authorities of City and Developer. On behalf of City, the City Manager shall have the authority to make minor amendments to this Agreement, including, but not limited to, the granting of extensions of time to Developer, on behalf of City so long as such actions do not materially change the Agreement or make a commitment of additional funds of City. All other changes, modifications, and amendments shall require the prior approval of City Council.
9.19 E
xhibits . The following exhibits are attached to and incorporated into this Agreement:
Exhibit A – PROPERTY LEGAL DESCRIPTION
Exhibit B – SITE DIAGRAM
Exhibit C – PROPERTY OWNER CONSENT
9.20 Authority to Execute . Each party hereto expressly warrants and represents that he/she/they has/have the authority to execute this Agreement on behalf of his/her/their corporation, partnership, business entity, or governmental entity and warrants and represents that he/she/they has/have the authority to bind his/her/their entity to the performance of its obligations hereunder.
9.21 Counterparts. This Agreement may be executed in multiple counterparts, each of which so fully executed counterpart shall be deemed an original. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterpart executed by the other party to this Agreement is in the physical possession of the party seeking enforcement thereof.
IN WITNESS WHEREOF this Agreement has been executed by the authorized representatives of the parties hereto.
CITY:
CITY OF WILDOMAR
By: ___________________________
Daniel A. York
City Manager
ATTEST:
By: ________________________
Janet Morales, CMC
City Clerk
APPROVED AS TO FORM:
By: ________________________
Thomas D. Jex
City Attorney
[NOTARY ACKNOWLEDGEMENT REQUIRED]
DEVELOPER:
WILDOMAR PALOMAR, LLC
By: ______________________________
Name/Title: Mark Malatesta, Owner
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document
STATE OF CALIFORNIA )
County of ___________________)
On ___________________________, before me, _______________________________a
Notary Public, personally appeared ____________________________________who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
EXHIBIT A
PROPERTY LEGAL DESCRIPTION
APN: 380-130-028
EXHIBIT B
SITE DIAGRAM
22812 Palomar Street, Suite #100 - 103 (APN: 380-130-028)
EXHIBIT C
PROPERTY OWNER CONSENT
I Eddie Fischer, being the owner of the real property described in Exhibit A to this Development Agreement by and between the City of Wildomar and Wildomar Palomar, LLC, a California Limited Liability Corporation, dated for identification as of April 13, 2022 (the “Agreement”), do hereby consent to the recordation of said Agreement in the Official Records of the County of Riverside.
Mr. Eddie Fischer
Date: _________________ __________________________
Owners Signature
Title: ______________________
[N
OTARY ACKNOWLEDGEMENT REQUIRED]
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document
STATE OF CALIFORNIA )
County of ___________________)
On ___________________________, before me, _______________________________a
Notary Public, personally appeared ____________________________________who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
1 CITY OF WILDOMAR – CITY COUNCIL
Agenda Item #1.6
CONSENT CALENDAR
Meeting Date: April 13, 2022
______________________________________________________________________
TO: Mayor and City Council Members
FROM: Emily Stadnik, Land Development Manager
Jason Farag, CIP Program Manager
SUBJECT: 2022 First Quarter Update - Public Works/Engineering Department
STAFF REPORT
RECOMMENDATION:
Staff recommends that the City Council receive and file the 2022 First Quarter Department Update for the Public Works/Engineering Department.
BACKGROUND:
The City’s Public Works and Engineering Department (Department) oversees the planning, design, construction, maintenance, and operations of City maintained improvements/infrastructure. Included within those responsibilities are the following key programs and roles for which the Department is responsible:
• Development Engineering
o Project Processing, Plan Review, Construction Administration and Inspection, Project Acceptance
• City Capital Improvement Program
o Planning, Design, Construction of City Projects
• Traffic Operations and Maintenance
• Roadway Maintenance Operations ( including formation and administration of maintenance districts)
• Stormwater Quality Compliance
• Utility Coordination
DISCUSSION:
Staff provides quarterly updates to the City Council regarding significant activities occurring within the Department. Previous updates have been presented as oral presentations at City Council Meetings. This quarter’s update is being presented in a written report and is presented below by category.
2 Development Engineering
Land Development is diligently working with the Planning Department on 22 entitlements:
including several residential subdivisions, commercial retail and mixed -use applications, and the approval of the IVMC medical expansion project.
• TM32206 Richmond American, Homestead
o Offsite improvements along Palomar Street, Ione Lane, and Cert Street, are near completion.
o Construction of residential units and interior streets is well underway. • TM31667 Beazer Homes, Boulder Creek
o Street improvements on Grand Avenue commence this month. Expected completion by the end of August.
o Construction of the RCFC box culvert on McVicar is currently under way, with street improvements to follow.
• TM37476 KB Homes, Summerhill II
o Grading for the residential Tract is complete, and construction is underway on residential lots.
o Offsite improvements on Summer Sage Way, and Monte Vista Drive are in construction, and efforts are being coordinated with adjacent developers and PW CIP.
• PM37941 Baxter Village
o Site rough grading is complete for the hotel, MOB, and residential lots. o Offsite improvements on Wildomar Trail/Baxter Road are currently underway for Phase 1 construction.
o Improvements along White Street will be completed with future phases of development.
• Kaiser MOB (at Baxter Village)
o Precise grading, onsite improvements, and utility infrastructure are expected to commence within the next few weeks.
• TM36672 Lennar, Horizons
o Grading activities are currently underway.
o Street improvements along Prielipp Road will commence in the next two weeks.
o There are ongoing coordination efforts with Lennar, Foremost Communities (Villa Siena), and UHS (IMVC Expansion), regarding street closures, detours, and emergency access.
• Other projects currently in plan check, with expected construction this year include:
o TM31896 Camelia
o Oak Springs Ranch II
o KCG Indoor Shooting Range
o Animal Friends of the Valley
3 Capital Projects
• Bundy Canyon Rd. Improvement Project, Segment 1 (CIP 026-1) o Construction of the sound wall is now complete and the application of the anti-graffiti coating is currently underway.
o Change Orders for the underground work at Sellers Rd. have been executed between the City and the Contractor, and the Contractor is remobilizing to complete the underground work so that the road can be reopened to traffic.
• Palomar St. & Clinton Keith Rd. Sidewalk, Trail, and Bike Lane Connectivity Project (CIP 059)
o The City advertised the project for construction on April 7, 2022.
Construction Bids are currently due on May 4, 2022.
o Construction is currently projected to begin in June/July and to be complete by September 2022.
• Local Roadway Safety Plan (CIP 051-1)
o The City is currently finalizing its LRSP. A Public Workshop is scheduled for the April 13 City Council Meeting to receive public input. o The LRSP will allow the City to apply for upcoming cycles of Highway Safety Improvement Program (HSIP) grant funding from the State and Federal Governments.
• Slurry Seal Program
o Staff is currently identifying streets to be included in another slurry seal project. Staff is planning to advertise the project for construction before the end of the fiscal year.
• Other Projects Continuing in Design
o Palomar St./Gruwell St. Widening (CIP 028-2)
o Cemetery Improvements, Phase 1 (CIP 067-1)
o Mission Trail/Sedco Sidewalk Phase 3 (CIP 044-3)
o 27-Acre Park, Phase 1 (CIP 062)
o Lateral C Basin and Storm Drain (RCFC) (CIP 063)
Maintenance
A summary of key Public Right-of-Way maintenance statistics for the months of January, February, and March 2022 is included in Table 1 below.
Table 1 – Q1 2022 Public Works Maintenance Summary
Item Quantity Units
Potholes Repaired 3,753 Square Feet
Weed Abatement 5 Miles
Trees Trimming 81 Trees
Sign Installations 125 Signs
Graffiti Removal 410 Square Feet
Catch Basin Cleaning 97 Catch Basins
4 FISCAL IMPACTS:
Public Works/Engineering Department funding is part of the approved budget.
Submitted by: Approved by:
Emily Stadnik, Development Manager Dan York
Jason Farag, CIP Program Manager City Manager
ATTACHMENTS:
None
1 CITY OF WILDOMAR – CITY COUNCIL
Agenda Item #1.7
CONSENT CALENDAR
Meeting Date: April 14, 2021
______________________________________________________________________
TO: Mayor and City Council Members
FROM: Jason Farag, CIP Program Manager
SUBJECT: Notice of Completion – House Demolition for the Bundy Canyon Road Improvement Project, Segment 2 (CIP 026-2A)
STAFF REPORT
RECOMMENDATION:
Staff recommends that the City Council adopt a Resolution entitled:
RESOLUTION NO. 2022-_______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR,
CALIFORNIA, ACCEPTING THE HOUSE DEMOLITION FOR THE BUNDY CANYON ROAD IMPROVEMENT PROJECT, SEGMENT 2 (CIP 026-2A) AS COMPLETE, AND
AUTHORIZING STAFF TO PREPARE AND FILE THE NOTICE OF COMPLETION
WITH THE RIVERSIDE COUNTY RECORDER
BACKGROUND:
On October 13, 2021, the City Council awarded a construction contract to Beckco, Inc. (Contractor) in the amount of $206,000.00 for the House Demolition for the Bundy Canyon Road Improvement Project, Segment 2 (CIP 026- 2A). The award authorized a contingency of ten percent (10%) to cover approved contract change orders that may occur during construction. The project was funded by Transportation Uniform Mitigation Fees (TUMF) budgeted in the right-of-way phase of the Bundy Canyon Rd. Improvement Project, Segment 2. The demolished houses were acquired by the City through the right- of-way acquisition process for Bundy Canyon Rd. and they were required to be removed in preparation for the grading and wideni ng of Segment 2 of the Bundy Canyon Rd.
Improvement Project.
The Project included the demolition of existing residential structures and the abandonment of related utilities at 23302 Bundy Canyon Rd, 23400 Bundy Canyon Rd., and 23456 Bundy Canyon Rd.
DISCUSSION:
Beckco, Inc. has completed all work required by the contract, and the project is ready for acceptance and filing of the Notice of Completion (NOC). If no liens or claims have been filed within 30 days of filing the NOC with the Riverside Count y Recorder, the City will release all retained funds and any additional remaining amount(s) due to Beckco, Inc.
The original contract price for the project was $ 206,000.00. No contract change orders were required during construction. T he Contractor completed the construction in a satisfactory manner and related contract document requirements were also executed in a satisfactory manner. The total contract amount at the time of construction completion remains $206,000.00.
FISCAL IMPACTS:
Project expenditures for Construction and Construction Administration/Inspection were funded by Transportation Uniform Mitigation Fee (TUMF) funds (Fund 503). Expenditures related to the Design/PS&E/Administration phase were also funded by TUMF.
On October 13, 2021, the City Council approved a budget adjustment of $91,000 to fund the Project construction. Table 1 below is a summary of the project budget, with estimated actual expenditures. As shown, the project is within budget and no additional funding or budget adjustments are necessary.
Table 1 - Estimated Current Project Budget
Project Phase/Task Budget Est.
Expenditures
Budget
Remaining
Right-of-Way (primary task)
Design/PS&E/Admin (sub-task) $10,000 $10,000 $0
Construction (sub-task) $226,600 $206,000 $20,600
Construction Admin/Inspection
(sub-task) $19,000 $6,772.50 $12,227.50
Total $255,000 $222,772.50 $32,827.50
Submitted by: Approved by:
Jason Farag Dan York
CIP Program Manager City Manager
ATTACHMENTS:
Resolution
A. Notice of Completion
RESOLUTION NO. 2022 -_______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR,
CALIFORNIA, ACCEPTING THE HOUSE DEMOLITION FOR THE BUNDY CANYON ROAD IMPROVEMENT PROJECT, SEGMENT 2 (CIP 026-2A) AS COMPLETE, AND
AUTHORIZING STAFF TO PREPARE AND FILE THE NOTICE OF COMPLETION
WITH THE RIVERSIDE COUNTY RECORDER
WHEREAS, On October 13, 202 1 The City Council awarded a construction contract to Beckco , Inc. for the House Demolition for the Bundy Canyon Road Improvement Project, Segment 2 (CIP 026-2A), (“Project”); and
WHEREAS, Beckco, Inc. has completed the work in accordance with the contract documents for the Project; and
WHEREAS, if no liens or claims have been filed within 30 days of filing the Notice of Completion, the retained payment funds and any remaining amount due will be released to Beckco, Inc.
NOW THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED by the Wildomar City Council, in regular session assembled on April 13, 2022, that:
The Project is accepted as complete. Within 15 days of the date of this Resolution, the City Engineer shall prepare a Notice of Completion and the City Clerk shall file the Notice of Completion with the Riverside County Recorder.
PASSED, APPROVED, AND ADOPTED this 13
th day of April, 2022.
________________________
Ben J. Benoit
Mayor
APPROVED AS TO FORM: ATTEST:
____________________ _______________________
Thomas D. Jex Janet Morales, CMC
City Attorney City Clerk
NO FEE DOCUMENT
Government Code §6103
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF WILDOMAR
23873 Clinton Keith Road, Suite 201
Wildomar, CA 92595
Attn: City Clerk
The Above Space For Recorder’s Use Only
NOTICE OF COMPLETION
Civil Code 3093
1. Prime Contractor: Beckco, Inc.
2. Project Name: House Demolition for the Bundy Canyon Road Improvement Project, Segment 2 (CIP 026-2A).
3. Date of Completion (Acceptance): April 13, 2022
4. Description of Work or Materials Furnished: Removal and dispos al of existing structures (including lead and asbestos abatement), surface improvements, and certain vegetation; abandonment of utilities including septic systems; install ation of chain link fencing and gates at designated locations, and site stabilization at 23302 Bundy Canyon Rd., 23400 Bundy Canyon Rd., and 23456 Bundy Canyon Rd., Wildomar, CA 92595.
5. Site Location: 23302 Bundy Canyon Rd., 23400 Bundy Canyon Rd., 23456 Bundy Canyon Rd.
Wildomar, CA 92595
6. Owner’s Property Interest in Site is: In Fee
7. Owner: City of Wildomar, 23873 Clinton Keith Road, Suite 201, Wildomar, CA 92595
City of Wildomar:
Dated: April 13, 2022
Dan York
City Manager
City Engineer/ Director of Public Works
Verification
I, the undersigned, say:
I am the person who signed the foregoing notice. I have read said notice and know the contents thereof, and the facts stated therein are true of my knowledge.
I declare under penalty of perjury that the foregoing is true and correct.
Executed at Wildomar, California, this 13th day of April, 2022.
City of Wildomar:
Dan York
City Manager
City Engineer/ Director of Public Works
CITY OF WILDOMAR – CITY COUNCIL
Agenda Item #1.8
CONSENT CALENDAR
Meeting Date: April 13, 2022
______________________________________________________________________
TO: Mayor and City Council Members
FROM: Emily Stadnik, Land Development Manager
PREPARED: Ninette Eva, Associate Engineer
SUBJECT: Inland Valley Medical Center Expansion - Precise Grading Agreement and Stormwater Management/BMP Facilities Agreement
STAFF REPORT
RECOMMENDATION:
Staff recommends that the City Council authorize the City Manager to execute the Precise Grading Agreement and Stormwater Management/BMP Facilities Agreement with Universal Health Services of Rancho Springs, LLC.
BACKGROUND:
The Inland Valley Medical Center project is a redevelopment project expand the existing the 22.24-acre hospital sit e. The project includes an expansion of all hospital/medical services and critical ancillary support for 100 new patients. The current hospital building will be demolished to allow the construction of a new seven-story, 232,626 square foot hospital tower and renovation of exist ing buildings. The project also includes a new heliport and relocation of the existing LED freeway sign. An aerial image of the project site is provided in Attachment A. A conditional use permit and a plot plan are currently being processed with the City ’s planning department. The precise grading plan for this project have been approved by the City. The improvement plans are currently being processed with the City. The project also involves the development of a Water Quality Management Plan (WQMP) to mitigate impacts to water quality from the project site. The WQMP includes the construction of Best Management Practices (BMPs) to meet water quality requirements.
DISCUSSION:
Precise Grading Agreement
The Precise Grading Plans for this development have been approved by the City. In order to complete precise grading activities, the Developer is required to enter into a Precise Grading Agreement (Attachment B ) which identifies the Developer’s obligations to the City in performing and completing the precise grading construction. The agreement also provides the City with bonds to secure the precise grading activities. If the Developer fails to fulfill their obligations, the bonds provide a mechanism for the City to ensure that the construction site is brought to a safe and acceptable condition. The bonds are based on the Developer’s engineer’s grading bond estimate and is included in Attachment B.
Staff is requesting that the City Council authorize the City Manager to execute the Precise Grading Agreement with Universal Health Services of Rancho Springs, LLC.
BMP Agreement
The Developer is also required to enter into a Stormwater Management/BMP Facilities Agreement (BMP Agreement, Attachment C) with the City. The BMP Agreement identifies the maintenance responsibilities of the Developer to ensure that the SWPPP BMPs that are constructed with this development continue to be maintained in the future.
Staff is requesting that the City Council authorize the City Manager to execute the Precise Grading Agreement and BMP Agreement for the Inland Valley Medical Center project.
FISCAL IMPACT:
There are no fiscal im pacts to the City at this time. All costs related to this process are covered by developer deposits. In compliance with the City’s NPDES/MS4 Permit, the City will be required to perform inspections of the BMPs for the project during the lifetime of the development and also receive and/or process verifications from the landowner indicating that the BMPs are being maintained. These inspections and processing activities are not paid for by the landowner and require that the City use its own funds from the ‘General Fund – Stormwater’ account. If the landowner(s) fails to maintain any BMPs that they are required to maintain and the City expends funds to maintain the BMPs to ensure the City’s MS4/Storm Drain System is protected, the BMP Agreement obligates the landowner to pay the City for all associated costs incurred.
Submitted by: Approved by:
Emily Stadnik Daniel A. York
Land Development Manager City Manager
ATTACHMENTS:
A. Aerial Image of Inland Valley Medical Center
B. Precise Grading Agreement, Bond, and Grading Bond Estimate C. Stormwater Management/BMP Facilities Agreement
ATTACHMENT A
Aerial Image of
Inland Valley Medical Center
(highlighted in yellow)
City of Wildomar
Grading Bond Estimate Worksheet
Parcel Map/Tract Map No: 25065 Date: 11/15/2021
PP, CU, PU, MS OR VL No: PP 20-0062 City Project No: 20-0062 Quantity Unit Unit Cost Amount
1 LS 10,000.00$ 10,000.00$
1 LS 10,000.00$ 10,000.00$
3 AC 5,000.00$ 15,100.00$
33,840 CY 30.00$ 1,015,200.00$
1,139 CY 12.00$ 13,668.00$
92 LF 8.00$ 736.00$
6,791 LF 12.00$ 81,492.00$
5 EA 500.00$ 2,500.00$
- AC 8.00$ -$
17 EA 50.00$ 850.00$
114,954.60$
1,264,500.00$
11/15/2021
Signature Date
Nikki Kerry
Name (type or printed)
58449 12/31/2022
RCE No. Expiration Date
Civil Engineer's Stamp
1. Quantities are to be taken from the Improvement Plans.
2. Show Performance Bond Amounts to the nearest $500.00.
3. For Construction items not covered by this worksheet, Design Engineer is to provide his opinion of construction cost and use that cost.
Mobilization
Item
Erosion Control
Rough Grading
Demolition and Removal
Contractor Mobilization
Import and Export Material
Mass Excavation
Clearing and Grubbing
Temporary Facilities and Utilities
Place Gravel Bags to Protect Catch Basin
Soil Binder
Install Stabilized Construction Entrance
Silt Fence
Place Gravel Bags 2 Course High
*** PLEASE READ INSTRUCTIONS BELOW ***
Total
10% Contingency
Inland Valley Medical Center - Project No. 20-0062
NOT FOR CONSTRUCTION
ATTACHMENT B
Tract Map No. 31667
McVicar Culvert Cooperative Agreement
CITY OF WILDOMAR – CITY COUNCIL
Agenda Item 1.9
CONSENT CALENDAR
Meeting Date: April 13, 2022
______________________________________________________________________
TO: Mayor and City Council Members
FROM: Robert Howell, Administrative Services Director
James R. Riley, Project Consultant, Municipal Consulting Services LLC
SUBJECT: Award Services Agreement with Rogers Anderson Malody & Scott , LLP (RAMS) Auditing Services Contract
STAFF REPORT
RECOMMENDATION:
Staff recommends that the City Council approve a three year contract with external auditors Rogers Anderson Malody & Scott, LLP (RAMS) to provide for audit services and preparation of requir ed reports for fiscal years 2021 /22 through 2023/24 and authorize the City Manager to execute the contract.
BACKGROUND:
The audit firm of Rogers Anderson Malody & Scott, LLP (RAMS) was selected on April 4, 2022 to perform the City’s needed auditing services. This selection occurred after t he City had reviewed three audit firms’ proposals to provide services to the City for a minimum three year term with the option of two, one year extensions. Based upon their technical skills, audit approach and cost, RAMS was selected.
RAMS is a local certified public accounting firm based in San Bernardino, CA with over 74 years of experience specializing in government agencies. They have developed a comprehensive remote working environment for their audits that allows them to be efficient and effective, but in a safe environment. The firm performs audits of several cities in Riverside County such as Menifee and San Jacinto. The firm is also the auditors for Elsinore Valley Municipal Water District.
RAMS will be responsible in performing an annual audit of all funds and financial statements of the City and preparing the City's Annual Comprehensive Financial Report (ACFR); the audit reports for the Wildomar C emetery District, Measure Z Park Fund , and Measure AA Fund, GANN Limit Review report, Annual State controllers Report, and the Single Audit Report, if applicable.
FISCAL IMPACT:
Fiscal impact for each fiscal year ending is as follows:
City Reports All Other Reports
June 30, 2022 $26,450 $21,610
June 30, 2023 $26,450 $21,610
June 30, 2024 $27,575 $22,420
Submitted by: Approved by:
Robert (Bob) Howell Dan York
Administrative Services Director City Manager
ATTACHMENTS:
A. RFP-Rogers Anderson Malody & Scott, LLP-Technical Proposal B. RFP-Rogers Anderson Malody & Scott, LLP-Cost Proposal C. Agreement for Services with Rogers Anderson Malody & Scott, LLP
CITY OF WILDOMAR
TECHNICAL PROPOSAL
PROFESSIONAL AUDITING SERVICES
FOR THE FISCAL YEARS ENDING JUNE 30, 2022, 2023 AND 2024
PREPARED BY
ROGERS ANDERSON MALODY & SCOTT, LLP
735 E Carnegie Drive, Suite 100
San Bernardino, CA 92408
LICENSE #2596
FEIN 95-2662063
MARCH 24, 2022
CONTACT PERSONS:
SCOTT W. MANNO, CPA, CGMA
[email protected]
B
RAD WELEBIR, CPA, CGMA, MBA
[email protected]
909.889.0871
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
Table of Contents
Page
Transmittal letter .................................................................................................................................. i
Technical Proposal
Firm qualifications and experience ............................................................................................ 1 About our firm
Governmental Audit Quality Center
Single Audit experience
ACFR preparation
Engagement quality control
Equal Opportunity Employer
Disciplinary action
External quality control review
Partner, supervisory and staff qualifications and experience .................................................... 3 Partner and supervisory staff involvement
Assigned personnel
Engagement team resumes
Similar engagements with other governmental entities ............................................................ 11
Approach to the audit ................................................................................................................. 12 Services to be provided
Engagement approach
Timeline ...................................................................................................................................... 14 Audit approach and proposed audit segmentation
Level of staff and approximate number of hours assigned to each segment Intelligent audit technology
Sample sizes (including for compliance testing)
Intelligent audit technology
Analytical procedures
Understanding of internal control over financial reporting Approach in determining applicable laws and regulations Auditing in a remote environment
Proposed audit timing
Condition of records
Attachment A: Government clients served
Attachment B: Prepared by client list
-i-
March 24, 2022
City of Wildomar
23873 Clinton Keith Road, Suite 201
Wildomar, CA 92595
Dear Evaluation Committee:
We are pleased to respond, on behalf of Rogers, Anderson, Malody & Scott, LLP, (RAMS) to your request for a proposal regarding professional auditing services. As a recognized industry leader and innovator, our goal for the past 74 years has been to provide honest, objective and high-quality results to all our clients, including governmental organizations such as yours. Our success in these efforts is witnessed by the continued organic growth of our firm and our list of long-term clients, some we have served for over 20 years.
At RAMS, we are committed to achiev ing the highest quality audit possible.
We understand the complexity of performing governmental audits and that is why we have a dedicated team of auditors that possess the specialized knowledge and experience to help ensure our audits are planned and executed in a way that maximizes audit efficiency and effectiveness and provides you the highest quality services.
We are aware that the City of Wild omar (the City) will be reviewing other proposals during this process, but we believe that RAMS would be an exceptional choice for the audit for the following reasons. Our firm:
Utilizes Teammate Analytics , a suite of more than 200 Computer Aided Audit Tools (CAATs). This software empowers our audit teams with the ability to perform powerful, meaningful data analysis which builds upon our other robust, substantive audit procedures. This value-added service also helps to identify specific transactions or amounts which may be indicative of fraud.
Performs an intelligent, risk-based audit (using our CAAT) which enables us to focus on key audit areas allowing us to become more efficient resulting in a higher quality audit at a reasonable fee. Currently provides auditing services to over 70 governmental agencies and not-for-profit organizations, including over 30 cities, most of which have enterprise activities and over 35 special districts. Developed a comprehensive remote working environment for our audits. All our staff currently have the tools for working remotely in an effective and efficient manner allowing us to still provide a quality audit. Our ultimate goal is to continue to meet your needs, but in a safe environment.
Has an established reputation in the governmental and not-for-profit accounting and auditing community for providing excellent, timely service with high quality reporting to our clients.
-ii-
Is committed to helping you meet all reporting/auditi ng deadlines, resolving any issues encountered during your audit (e.g., accounting or auditing, new pronounce ments, etc.), and providing you with quality audit services.Understands the audit process can be a stressful ex perience for you and your staff; we understand that you will have other commitments and your regular workloads during the audit. We make every effort to ensure the audit process, from the interim fieldwork to the preparation of any required financial reports, will be as trouble- free as possible for you and yo ur staff. We accomplish this by comprehensively planning the audit and utilizing our staff and audit technologies in the most efficient and effective manner while keeping disruptions and miscommunications to a minimum. Has audit team members that are personable and easy to work with, yet still focused on the audit. Through open and responsive communication with all parties involved in the audit process, we work to have the most efficient audit possible by minimizing operational distractions of your staff, while maximizing quality service.
Has an extensive internal quality control review proc ess to ensure your financial reports meet the highest standards. In addition to the preparation of financi al reports by the engagement team and reviewed by the engagement manager, each report is also examined by 2 partners and at least 1 professional proofreader.
Has assisted many of our client s with the preparation of their Annual Comprehensive Financial Reports, and all our clients that have submi tted their reports for the Government Finance Officers Association (GFOA) or California Society of Municipal Finance Officers (CSMFO) awards have received the awards.
Our participation as a GFOA reviewer also indirectly benefits our clients in the quality review process. Believes that our fee estimate provides a fair a nd reasonable investment, commensurate with level of service provided and the experience of the audit team members. While we may not be the lowest bidder, that is not our objective. We focus on delivering the best value and price our prospective engagements accordingly.
Is a local Southern California firm. All our employees live, work, and shop in the region, allowing our local cities to benefit from our sales and property taxes.
As you will see from our proposal, it was prepared in a clear, concise and simple manner in accordance with the request for proposal. We feel our firm, staff and reputation as a leader in governmental auditing exceeds the need for the excess information you may see in other proposals.
Rogers, Anderson, Malody & Scott, LLP is properly license d to practice in California, including all the assigned professional staff to the engagement. Mr. Welebir, Partner , and Mr. Manno, Partner, are authorized to represent the firm, are empowered to submit the bid and authorized to sign a contract with the City. We understand the work to be done as listed in the section of this proposal titled Services to be provided. In addition, we will be committed to meeting any agreed upon time frames. This proposal is a firm and irrevocable offer for ninety (90) days.
We can be reached at: 735 E. Carnegie Drive, Su ite 100, San Bernardino, CA 92408, (909) 889-0871, [email protected] or [email protected].
Thank you for the opport unity to present our proposal to the Ci ty. We will be committed to exceeding your expectations of an auditor and believe this proposal provides you with information about our firm, the service team members and our customized audit approach. We look fo rward to having a long and mutually beneficial relationship with the City.
Please feel free to contact us if you have any questions regarding this proposal.
Respectfully yours,
ROGERS,
ANDERSON, MALODY & SCOTT, LLP
Scott W. Manno, CPA, CGMA
Partner
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
-1-
Firm qualifications and experience
About our firm
We are a local firm founded in 1948 and located at 735 E. Carnegie Drive, Suite 100, San Bernardino, California. We provide a full range of services as expected of a full-service accounting firm. We are one of the oldest, most trusted and respected CPA firms in Southern California, with over 74 years of public practice experience, specializing in governmental agency and not-for-profit
organization auditing, accounting, and management advisory services. Over sixteen thousand hours per year are devoted to this area of our practice, which includes cities, redevelopment successor agencies, water districts, other special districts, not- for-profit corporations, and joint power authorities. We do not use our government accounting and auditing practice as “fill work” for the firm, it is one of our primary focuses thus allowing us to provide quality services to local governments.
We understand your desire to engage auditors that have a thorough understa nding of the ever-changing complex accounting and compliance issues confronting governments today. Our firm has an extensive history of governmental accounting and auditing. During that time, we have gained valuable experience, acquired an in-depth knowledge of, and obtained the technical expertise needed to perform high quality governmental audits. This expertise has enabled us to provide except ional, high-quality service and to provide solutions at fees we feel represent our value to our clients. In addition, we use our partici pation in various industry associations to continuously update our knowledge with respect to issues relating to governmental accounting, auditing, and operations. Any insight we gain is immediately pass ed on to our clients if we feel they will benefit from it.
Our firm has a total staff of thirty-nine people, which includes fifteen certified p ublic accountants. The staff consists of five partners, three managers, ten supervisors/senior accountants, sixteen staff accountants, and five support staff. The audit staff consists of twent y-one members who de vote over 80% of their time to municipal engagements. The engagement team assigned to the City’s engagement will consist of the following full-time staff: one audit partner, one audit manager, one audit supervisor, and two staff auditors. All personnel are out of our San Bernardino office.
Governmental Audit Quality Center
As a member of the American Institute of CPAs Governmental Audit Quality Center (Center), we are committed to adhering to the highest quality standards by voluntarily agreeing to the Center membership requirements, which include designating a partner re sponsible for the quality of our governmental audit practice, establishing quality control programs, performing annual internal inspection procedures, and making our peer review report findings publicly available. At RAMS, our goal is to continue to enhance our quality initiatives within our governmental audit practice to deliver the highest quality audit services possible.
In addition, the Governmental Audit Quality Center provides access to comprehensive resources that will assist us in further enhancing the qual ity of your audit. The Center membership provides us with timely information on a variety of technical, legislative, and regulatory subjects that we can in turn apply to your audit to help ensure compliance with the appropriate standards and changes in regulations which we pass on to our clients.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Firm qualifications and experience (continued)
Single Audit experience
Most of our municipal clients, and some of our other governmental and not-for-profit clients, have been subject to an audit in accordance with Uniform Guidance . We recently performed single audits for the following entities:
Elsinore Valley Muni. Water District Cit y of San Bernardino City of El Cajon Cit y of La Mesa
City of San Marcos Cit y of West Covina
City of Poway Cit y of Twentynine Palms
City of Fillmore Cit y of Woodlake
City of Exeter Cit y of Rosemead
City of La Verne Cit y of Hawthorne
Our specialized Single Audits Team is led by Ma nagers and Supervisors with Intermediate and Advanced Single Audit Certifications issued by the AICPA guaranteeing a successful and thorough engagement.
ACFR preparation
We have extensive experience in the preparation of Annual Comprehensive Financial Reports (ACFR). For the fiscal years ended June 30, 2019 and 2020, our staff prepared over 20 ACFR’s, with each entity receiving the Certificate of Achievement for Excellence in Financial Reporting from the GFOA. For the fiscal year ended June 30, 2021, again, our staff prepared 29 ACFR’s for our clients for submittal to the GFOA. In addition, we have helped many cities and special districts develop thei r first year’s report for submittal. Two of our audit partners and four of our supervisory staff are technical reviewers for the GFOA award program. In addition, we review all the ACFR’s for compliance with th e GFOA certificate program checklist, as well as addressing any prior year comments, if applicable, to insure they have been addressed.
Engagement quality control
We have an extensive internal quality control re view process to ensure yo ur audit meets the highest standards. In addition to the preparation of financial reports by a senior member of the engagement team, each report is reviewed by the engagement manager /supervisor and then is examined by the engagement partner. Subsequently, a technical review is then performed by the engagement Quality Control partner along with being proofread by at least o ne professional staff. In addition, a ll audit workpapers are reviewed by the in-charge auditor and the partner in-charge of the engagement.
Equal Opportunity Employer
Our firm is an equal opportunity employer and is co mmitted to providing employment opportunities to all qualified persons regardless of race, color, sex, religi on, national origin or handicap. Our staff represents a wide range of cultures and ethnic backgrounds. We provide opportunities for advancement for all staff based on ability, skill and desire to advance.
Disciplinary action
The firm has never had any disciplinary action taken or pending against it with state regulatory bodies or professional organizations, nor has it ever had any pending or settled litigation, civil or criminal investigations.
In addition, we are not aware of any federal or state desk reviews or field reviews of its audits during the last three years. Our firm does not have a record of substandard work.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
-3-
Firm qualifications and experience (continued)
External quality control review
As a member of the AICPA Private
Companies Practice Section, our firm
has participated in the “Peer Review”
program since 1993 and has been
examined every three years since that
date by an outside, independent firm of
certified public accountants.
Participation in this program ensures
that our engagements, firm policies,
and audit procedures meet the
standards of the AICPA, the Yellow
Book, and the California State Board
of Accountancy. Throughout our
participation in this program, the firm
has only received pass ratings from
the peer reviewers.
During each review, an independent
firm reviews our policies and
procedures and then inspects a
representative sample of engagement
workpapers and reports, including
governmental entities and
engagements subject to the Uniform
Guidance. For the year ended
November 30, 2020, our firm received
a rating of pass which indicates our
auditing practice is suitably designed
and complied with to provide
reasonable assurance of performing
and reporting in conformity with
applicable standards. The results
provide confirmation that the custom
audit approach and procedures we
use are technically sound and in
compliance with applicable standards.
Partner, supervisory, and staff qualifications and experience
The quality of service you receive is dependent on the capabilities of the i ndividuals assigned to the engagement, and the manner in which those personnel reso urces are organized to efficiently focus their abilities on providing you with the requested audit se rvices. These professional s are highly trained and knowledgeable and have a thorough understanding of the environment in which governmental and not-for- profit entities operate. This experien ce is a critical component in providing the City with an effective and efficient audit.
Our engagement team will provide significant experience coupled with an extensive, practical understanding of governmental accounting and auditing along with a broad bu siness perspective. Each member will have access to a wide ra nge of technical resources a nd knowledge bases which will enable them to provide the City with practical observations and effective solutions.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Partner, supervisory, and staff qualifications and experience (continued)
Partner and supervisory staff involvement
All partners and supervisory staff are working professionals and are actively and continually involved in all aspects of their engagements. We belie ve that partner and supervisory staff involvement in all areas of the audit is a key aspect of the overall audit process. This involvement includes being on-site for interim and year- end fieldwork, thus facilitating a prop er, efficient, and effective audit, with minimal disruption of your staff. In addition, the time spent on-site by the partners and supervisory staff ensur es they gain an understanding of the entire City’s accounting processes and procedures. This understanding will enable them to evaluate and develop opportunities for efficiency, as well as offe r practical and functional advice for improving your accounting processes and procedures.
All professionals on this engagement have worked on audits similar in nature to the City’s, therefore, the City will not have to train our engagement team.
Assigned personnel
It is our goal to provide you with capable, comp etent, and personable individuals who offer an extensive background, not only in governmental accounting and auditing, but also in general business practices. By doing so, it allows us to offer practical solutions, as well as provide technical support. This enables you to stay at the forefront of governmental accounting and provides you with the support you need in dealing with the complex issues confronting entities such as yours.
In addition, our engagement team has the managerial and s upervisory experience to provide the City with a comprehensive audit of the highest qua lity, while still focusing on persona l service. The resumes of the key engagement personnel assigned to the audit are presented below. The following individuals will be assigned to the engagement for the entire contract period (see staff Continuity section of this proposal):
Scott W. Manno, CPA, CGMA - Partner, Engagement Partner
Scott is a municipal audit partner with the firm and will be the engagement partne r. He is licensed to practice as a certified public acc ountant in the State of California. He has been in public accounting for over 25 years specializing in serving local governme nts such as yours. As the engagement partner, he will be responsible for overall engagement quality, as well as ensuring that the engagement is performed in the most effective and efficient manner. Scott will directly oversee all engagement staff while assisting in planning and performing the engagement, as well as reviewing all work-papers prepared during the engagement, in addition to all require d reports. Scott is a working partner and will be actively and continually involved in all aspects of the engagement.
Brad A. Welebir, CPA, CGMA, MBA - Partner, Concurring Partner
Brad is also a municipal audit partner with the firm. He is licensed to practice as a certified public accountant in the State of Califor nia. Brad has over 18 years of p ublic accounting experience and has provided accounting, auditing, and consulting services for municipalities, special districts, water agencies, and various not-for-profit orga nizations. As the concurri ng partner, Brad will work directly with Scott in planning and performing the engagement. In addition, he will provi de technical consultation for the engagement team.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Partner, supervisory, and staff qualifications and experience (continued)
Terry Shea, CPA - Partner, Quality Control Reviewer
Terry will be the Quality Control Revi ewer. He is licensed to practice as a certified publ ic accountant in the State of California. He has over 40 years of practical, governmental accounting and auditing experience. Terry will be responsible for the final quality control review of all released opinions and related reports.
Brianna Schultz, CPA, CGMA - Engagement Manager
Brianna is a manager with the firm and is licensed to practice as a certified public accountant in the State of California. Brianna has over 12 years of experien ce in providing accounting and auditing services for municipalities, special districts, and various no nprofit organizations. As the engagement manager, she will work directly with the audit in-charge and partner, while supervising the engagement team during all phases of the engagement. In conjunction with the audit in-charge, she will also oversee the preparation of any required reports.
Thao Le, CPA - Engagement Supervisor
Thao is a supervisor with the firm and is licensed to practice as a certified public accountant in the State of California. She has over 4 years’ experience in providing accounting and auditing services for municipalities, special districts and various nonprofit organizations. As an audit supervisor, she will work closely with the engagement partner and manager and be responsible for planning the audit, supervising the staff assigned to the engagement, and performing reviews of all workpapers prepared for the engagement. In addition, she will also be responsible for the preparation of any required reports.
Staff level accountants
All staff accountants employed by us and working on governmental audits are qualified to perform such audits. Prior to “audit season”, our staff are subject to a rigorous training regimen in which we go over all aspects of our audit process and audit programs ensuring staff members have a solid foundation prior to starting fieldwork. Each staff member is encouraged to take on increased responsibility for engagements previously worked on. This enables our staff to grow on each engagement and allows them to continue to gain the skills and knowledge required to perform the audits.
In summary, we want to emphasize the credentials of the above professionals who will be directly responsible for the quality of service that you will receive. Additionally, our audit team has another attribute that is very important, even though it is intangible -- the professi onals assigned to the audits have previously worked together as a multi-disciplined team, thus ensuring a smooth, efficient, and effective audit. We are committed to allocating the necessary resources to ensure that we provide continuity of personnel throughout the term of our relationship with the City.
Full engagement team resumes are provided as follows.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
-6-
Partner, supervisory, and staff qualifications and experience (continued)
Engagement team resumes
Scott W. Manno, CPA, CGMA
Engagement Partner
Professional experience
Mr. Manno began his career with Thomas, Bigbie and Smith in 1995 after serving in the United States Army. He spent six years with the firm primarily working on audits of municipalities, special districts and redevelopment agencies as well as various not-for-profit organizations. He joined Rogers, Anderson, Malody & Scott, LLP in July 2001. Currently, Mr. Manno serves as a technical reviewer for the GFOA ACFR Award program. Since 2010, Mr. Manno has been serving as a technical volunteer on the California Special Districts Association Audit Committee and is also on the Association’s fiscal committee providing accounting and fiscal program guidance. Also, Mr. Manno has done presentations on fraud.
In addition, he is part of the California State Society of Certified Public Accountants Governmental Accounting and Auditing Committee which meets periodically to discuss current events, pronouncements, etc.
Education/licenses
Bachelor of Science, Business Administration – California State University, San Bernardino Certified Public Accountant – State of California
Chartered Global Management Accountant – American Institute of Certified Public Accountants
Related professional experience
Partial listing of relevant governmental agencies served (*includes enterprise fund accounting):
City of El Cajon* Town of Yucca Valley City of La Mesa* City of La Verne City of Sierra Madre* City of Fillmore* City of Chino* City of 29 Palms City of Moreno Valley* City of Beaumont* City of San Marcos* City of Loma Linda* City of Claremont City of Perris* City of Exeter* City of Woodlake* City of San Jacinto* City of Menifee City of Rolling Hills Est. City of Poway*
Mr. Manno has completed over 170 hours of continuing professional education courses over the past three years of which the following select courses are relevant to this engagement:
Audits of State and Local Governments
Government Accounting and Auditing Update
OMB Supplement Addendum and Latest Covid-19
Professional affiliations
Mr. Manno is a member of the following organizations:
American Institute of Certified Public Accountants (AICPA) California Society of Certified Public Accountants (CalCPA) Association of Government Accountants (AGA)
Association of Certified Fraud Examiners (ACFE)
Government Finance Officers Association (GFOA)
California Special Districts Association (CSDA)
California Society of Municipal Finance Officers (CSMFO)
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Partner, supervisory, and staff qualifications and experience (continued)
Terry P. Shea, CPA
Quality Control Partner
Professional experience
Mr. Shea began his career with Thomas, Byrne and Smith in 1981. He spent five years with the firm primarily working on audits of municipalities, special districts, redevelopment and other governmental agencies. He joined Rogers, Anderson, Malody & Scott, LLP in 1987 where he has completed governmental audits including municipalities and provided financial consulting services for various cities.
Education/licenses
Bachelor of Arts – California State University, Fullerton Certified Public Accountant – State of California
Related professional experience
Partial listing of relevant governmental agencies served (*includes enterprise fund accounting):
City of La Mesa* City of Loma Linda* City of Riverside* City of Grand Terrace* City of San Jacinto* City of El Cajon* City of Palm Desert* City of 29 Palms City of Indian Wells City of Corona* City of Coachella City of Fillmore* City of Norco City of Goleta City of Redondo Beach City of Indio* City of Poway City of Menifee City of Aliso Viejo City of Fontana*
Mr. Shea served as the Interim Finance Director for the City of Perris from July 1998 to October 2001. He currently serves as the Contract Finance Director for one Riverside County city and one Los Angeles County city.
Continuing professional education
Mr. Shea has completed over 120 hours of continuing professional education courses in the past three years, of which, the following select courses are relevant to this engagement:
Foundations in Governmental Accounting
Governmental and Not-for-Profit Conference
Governmental Auditing Skills
Audits of State and Local Governments
Professional affiliations
Mr. Shea is a member of the following professional organizations:
American Institute of Certified Public Accountants (AICPA) California Society of Certified Public Accountants (CalCPA) Government Finance Officers Association (GFOA)
California Society of Municipal Finance Officers (CSMFO)
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
-8-
Partner, supervisory, and staff qualifications and experience (continued)
Brad A. Welebir, CPA, CGMA, MBA
Concurring Partner
Professional experience
Mr. Welebir joined Rogers, Anderson, Mal ody & Scott, LLP in 2004. He primarily provides audits and advisory services to governmental agencies, small to mid-sized businesses, and not-for-profit organizations. Mr. Welebir serves as a technical reviewer for the GFOA ACFR Award program. He also serves as the CalCPA Inland Empire chapter chair of the governmental accounting and auditing committee and as the representative for the chapter at the state committee.
Education/licenses
Master of Business Administration, Accounting Emphasis – California State University, Fullerton
Bachelor of Arts in Business Administration – La Sierra University Certified Public Accountant – State of California
Chartered Global Management Accountant – American Institute of Certified Public Accountants
Related professional experience
Partial listing of relevant governmental agencies served (*includes enterprise fund accounting):
City of Twentynine Palms City of Loma Linda* City of San Bernardino City of La Verne City of Sierra Madre* City of Fillmore* City of Poway* City of Poway City of Moorpark* City of Rosemead City of Redondo Beach* City of San Marcos* City of Claremont Town of Yucca Valley City of Aliso Viejo City of San Jacinto*
Continuing professional education
Mr. Welebir has completed over 120 hours of continuing professional education courses in the past three years of which the following select courses are relevant to this engagement:
Governmental Accounting and Auditing Update
Single Audit Update
Auditing Fraud Risk in the Current Environment
Annual Conference Sessions
GAAP Update
Professional affiliations
Mr. Welebir is a member of the following professional organizations:
American Institute of Certified Public Accountants (AICPA) California Society of Certified Public Accountants (CalCPA) Government Finance Officers Association (GFOA)
California Society of Municipal Finance Officers (CSMFO) California Special Districts Association (CSDA)
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
-9-
Partner, supervisory, and staff qualifications and experience (continued)
Brianna Schultz, CPA, CGMA
Audit Manager
Professional Experience
Ms. Schultz began her career with Rogers, Anderson, Malody & Scott, LLP in July 2014, and had over three years’ experience with another public accounting firm serving the same industry. During her time with the firm, she has worked primarily on audits of municipalities, special districts and redevelopment agencies, as well as various non-profit organizations.
Education
Bachelor of Science – California State University, San Bernardino Certified Public Accountant – State of California
Chartered Global Management Accountant – American Institute of Certified Public Accountants
Related Professional Experience
Partial listing of relevant governmental agencies served (*includes enterprise fund accounting):
City of Menifee City of Aliso Viejo City of Claremont* City of Chino* City of Glendora* City of Rolling Hills Est. City of San Bernardino City of Sierra Madre* City of La Verne* City of Loma Linda* City of South Pasadena* City of West Covina* City of La Mesa* City of Baldwin Park City of El Cajon* City of Hawthorne*
Ms. Schultz obtained the AICPA’s Advanced Single Audit Certificate in 2019 and the Intermediate Single Audit Certificate in 2017. She served as the contract Interim Accounting Manager for the City of Glendora in 2016 and the Senior Accountant for the City of Rancho Cucamonga in 2015. Additionally, she is a reviewer for the GFOA ACFR Program.
Continuing Professional Education
Ms. Schultz has completed over 100 hours of continuing professional education courses over the past two years of which the following select courses are relevant to this engagement:
COVID-19 Impact on Payroll and Payroll Fraud
Uniform Guidance Update 2021
What You Need to Know About the Changes to Yellow Book
Professional Affiliations
Ms. Schultz is a member of the following organizations:
American Institute of Certified Public Accountants (AICPA) California Society of Certified Public Accountants (CalCPA) Government Finance Officers Association (GFOA)
California Society of Municipal Finance Officers (CSMFO)
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Partner, supervisory, and staff qualifications and experience (continued)
Thao Le, CPA
Supervisor
Professional Experience
Ms. Le began her career with Rogers, Anderson, Malody & Scott, LLP in September 2018. During her time with the firm, she has demonstrated a strong understanding of generally accepted accounting principles and governmental auditing standards through performing tests of internal controls and compliance of municipalities, special districts and various non-profit organizations. As a Supervisor, she will work closely with the engagement partner and manager to meet clients financial reporting needs. Her responsibilities include planning the audit, supervising the staff assigned to the engagement, and performing reviews of all workpapers prepared for the engagement. In addition, she will also be responsible for the preparation of any required reports.
Education
Master of Business Administration from California State University, San Bernardino Bachelor of Arts in Business Administration from California State University, Fullerton Certified Public Accountant – State of California
Related Professional Experience
Partial listing of relevant governmental agencies served (*includes enterprise fund accounting):
City of Beaumont City of Calabasas City of El Cajon City of Hawthorne City of La Mesa City of La Verne City of Loma Linda City of Menifee City of San Dimas City of South Pasadena City of West Covina City of Fillmore City of Aliso Viejo City of Claremont City of Poway City of San Jacinto
Continuing Professional Education
Ms. Le has completed the following select courses that are relevant to this engagement:
2020 GAAP, GAAS, & SSARS Update
COVID-19 Issues for Government Accountants and Auditors GASB Lease Change
Audits of State and Local Government
Uniform Guidance: New Single Audit Requirements
Professional Affiliations
Ms. Le is a member of the following organizations:
American Institute of Certified Public Accountants (AICPA) California Society of Certified Public Accountants (CalCPA) California Society of Municipal Finance Officers (CSMFO)
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Similar engagements with other governmental entities
Entity: City of El Cajon
Scope of work: City ACFR*/Successor Agency/Public Financing Authority/Single Audit/GANN limit/Measure O
Date: Years ending June 30, 2008 - present
Engagement partner: Mr. Scott Manno/Mr. Terry Shea
Total hours: Approximately 400 hours each year
Contact person: Ms. Victoria Danganan, Finance Manager, (619) 441-1763 Entity: City of San Jacinto
Scope of work: Financial Audit/ Single Audit/Successor Agency Date: Years ending June 30, 2011 - present
Engagement partner: Mr. Scott Manno/Mr. Terry Shea
Total hours: Approximately 300 hours each year
Contact Person: Mr. Tom Prill, Deputy City Manager, (951) 487-7330 Entity: City of San Bernardino
Scope of work: Financial Audit/ACFR/Single Audit
Date: Years ending June 30, 2020 - prestn
Engagement partner: Mr. Terry Shea
Total hours: Approximately 550 hours each year
Contact person: Ms. Barbara Whitehorn, Finance Director, (909) 384-5242 Entity: City of Menifee
Scope of work: Financial Audit/ACFR*
Date: Years ending June 30, 2014 - present
Engagement partner: Mr. Scott Manno/Mr. Terry Shea
Total hours: Approximately 275 hours each year
Contact person: Ms. Wendy Preece, Deputy Finance Director, (951) 672-6777 Entity: Town of Yucca Valley
Scope of work: Financial Audit/ACFR*/Successor Agency
Date: Years ending June 30, 2008 - present
Engagement partner: Mr. Scott Manno/Mr. Brad Welebir
Total hours: Approximately 350 hours each year
Contact person: Mr. Curtis Yakimow, Town Manager (760) 369-7207 Entity: City of Rolling Hills Estates
Scope of work: Financial Audit/ACFR
Date: Years ending June 30, 2019 - present
Engagement partner: Mr. Scott Manno
Total hours: Approximately 250 hours each year
Contact person: Mr. Mike Whitehead, Admin. Services Director, (310) 377-1577, ext.112 * = received GFOA award.
See Attachment A for a listing of current and recent government clients served.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
-12-
Approach to the audit
Services to be provided
The City desires the auditor to express an opinion(s) on the fair presentation of the financial statements for the following: the City of Wildomar, Wildomar Measur e Z Park Fund, Wildomar Cemetery District, and the Measure AA Fund in accordance with generally accepted accounting principles.
In addition, we shall:
Apply certain limited procedures related to M anagement’s Discussion and Analysis and Required Supplementary Information and provide an “in-relation-to" report on the combining and individual fund financial statements and supporting schedules, if applicable. Provide opinions as to the compliance with the Un iform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards (OMB Uniform Guidance). RAMS is to provide an "in- relation-to" report on the Schedule of Expenditu res of Federal Awards based on the auditing procedures applied during the audit of the financial statements. Test compliance with Article XIIIB pertaining to the City's appropriation lim it and prepare an Agreed- Upon Procedures report to the City Council regarding compliance. Prepare the Annual Financial Transaction Report (cur rently we utilize a sub-c ontractor for this), if requested.
Our audit(s) will be in accordance with:
Generally Accepted Auditing Standards as promulgat ed by the American Institut e of Certified Public Accountants, including requirements found in the most recent AICPA audit guide Audits of State and Local Governments.
Government Auditing Standards issued by the Comptroller of the United States of America. Uniform Administrative Requirements, Cost Prin ciples and Audit Requirements for Federal Awards (OMB Uniform Guidance).
Any other applicable standards for other items out lined in the Scope of Work to be performed and/or reports to be issued.
Reports to be issued:
A report on the fair presentation of the finan cial statements in conformity with GAAP. A report on internal control over financial repo rting and on compliance and other matters based on an audit of financial statements performed in accordance with Government Auditing Standards (material weaknesses or significant deficiencies).
A report in compliance with requirements applicable to each major federal program and internal control over compliance in accordance with the Uniform Guidance. Prepare Management Letter that includes signific ant and less significant (i.e., reportable and non- reportable) recommendations for improvements to internal control. We will issue reports to those charged with governance (SAS 114 letters) as required by auditing standards.
RAMS will also perform the following:
Make an immediate, written notificat ion of all irregularities and illegal acts or indication of illegal acts of which we become aware to the following: City Manager and City Attorney.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Approach to the audit (continued)
Engagement approach
Our engagement approach for your a udit will be developed, in part, by using established goals which will enable measurement of the audits progress by the enga gement partner and lead auditor. This involves frequent communication between the partner and the engagement team to ensure that all audit objectives are achieved in accordance with our goals and that any issues which may arise are communicated and dealt with on a timely basis. In addition, our in-depth knowledge and expertise in governmental accounting and auditing has allowed us to identify key audit and accounting ri sks in the government environment. More importantly, the approach provides for a complete reassessment of the control environment in each year's audit and thus enables us to respond to any needed risk assessment changes.
Our engagement approach has been developed and refined over many years. The foundation of our approach revolves around the following:
Knowledge and experience. We have been auditing governmental entities like the City, both large and small, for over 74 years. This experience has allowed us to gain in-depth knowledge of the governmental environment which in turn allows us to perform a more efficient and effective audit. It also enables us to perform detailed risk assessment procedures allowing us to identify significant audit risk areas within the City and its control environment.
Intelligent design: As discussed later in our proposal, all our audits are designed to be intelligent using our powerful audit software/data analytic tools (Engagement and Teammate Analytics). This allows us to analyze large amounts of data in seconds increasing both the efficiency and, more importantly, the effectiveness of all our audit engagements.
Oversight. Professional judgment is not developed overnight. Ou r partners, managers and supervisors have been deeply involved in governmental audits on a continuous basis for mo st of their professional careers. By having direct partner and manager oversi ght, we can design audit strategies that result in effective and efficient audits.
Timeliness. Deadlines are not just “dates” to us, they are professional commitments. All required deadlines will be met.
Open communication. Open lines of communication with all parties (the engagement team members and City Management and staff) throughout the audit pr ocess helps to eliminate “surprises.” Proper planning and proper use of experienced engagement per sonnel tend to provide for an effective and efficient audit process. Consequently, inefficiencies, disruptions, and lack of understanding are kept to a minimum.
Availability. All engagement team members are available throughout the year for any questions or additional consultation. City staff will have direct access to the part ner, manager, and other supervisory staff at all times during the engagement, as well as after. Cost effectiveness. Our customized audit approach and procedures and our experienced auditors help to reduce your overall audit costs while still providing an effective audit and high-quality reports. Risk based approach.
Our detailed risk assessment procedures will consist of activities performed to obtain an understanding of the City and its environment, including its internal control. Evidence from these activities will provide the basis for our assessment of risks of material misstatement at the financial statement and relevant assertion levels. While perfo rming our risk assessment procedures and we may choose to perform further audit procedures concu rrently with risk assessment procedures as deemed necessary. In addition, risk assessment procedures will provide some of the necessary evidence about the relevant assertions related to classes of transactions, account balances, or disclosures and about the operating effectiveness of controls.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Approach to the audit (continued)
As indicated in the previous section of the proposal, t he overall objective of the engagement with the City is to conduct an audit of the financial statements in accordance with required auditing standards and the expression of an opinion(s) on those financial statement s. Beyond that initial objective, we believe that our engagement approach provides certain other value-added characteristics, at no additional cost, that will benefit the City over the long-term:
All our audits are designed to be performed in an efficient and effective way to minimize disruption to the office operations.
We offer practical observations and recommendations relating to internal control issues, implementation of accounting standards and the policies and procedures regarding both. We identify opportunities for operating efficiencies which can be used to decrease operating costs of the City.
Timeline
Audit approach and proposed audit segmentation
The following is a summary of the audit team’s audit approach for the engagement. The audit will be divided into the following segments:
Segment 1 - Interim testing - planning, pre-audit administration, and internal control testing
During this phase of the audit, our pr incipal objectives will be to gather information about t he City and its environment, including its internal control over financial reporting.
In order to achieve the desired objectives of this phase of the audit, we will:
Meet with the City’s staff in order to determine convenient dates in which we can begin our audit and to discuss the assistance to be provided by the City’s staff. Hold brainstorming sessions with engagement team members to discuss the susc eptibility of the City’s financial statements to material misstatement and fraud. Review and evaluate the City’s accounting and reporting processes by reviewing the prior year's audit workpapers, any City-prepared documents such as budgets, in-house financial reports, policies and procedures manuals, minutes of governance me etings, etc., and by using various analytical procedures. Analytical procedures will enhance our understanding of the City and will help us identify areas that may need further assessment and additional testing. Review and retain copies of any pertinent local, state and federal statutes, re gulations, or charters that apply to the City.
Evaluate the design of controls that are relevant to the audit by obtaining a thorough understanding of the City’s internal controls over financial reporting and compliance by documenting key internal control components, utilizing questi onnaires, walkth roughs, inquiring of t he City’s personnel, and observing and reviewing key supporting documentation (a more thorough explanation of this process is discussed later in the technical proposal).
Test controls, if control risk is to be assessed bel ow maximum, by selecting a sample of transactions within the audit area being tested and reviewing supporting documentation to determine whether the relevant controls are in place and functioning properly.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
-15-
Timeline (continued)
Document and review with management, any finding s noted during the testing of internal controls and provide a preliminary management letter that will includ e our recommendations for improving any weaknesses in operations. The letter will also include suggestions for improving the efficiency of the City’s operations.
Utilize our powerful audit data an alytic software allowing us to analyze large amounts of data in seconds and focusing on areas/transactions that are red flagged.
In addition, we will perform the following procedures related to IT General Controls that “touch” financial data:
Security access (including physical) controls : evaluate the general system security settings and password parameters; evaluate the process for adding, deleting, and changing security access; evaluate the access capabilities of various types of users; evaluate access controls to networks and financial applications; evaluate access controls related to data files; and evaluate physical access to networks, servers, etc.
Computer operations: Evaluate backup and recovery processes and review processes of identifying and handling operational problems.
System development and system changes: Evaluate processes related to system development and system changes (if applicable).
Application testing: We will determine if the testing of application controls is deemed necessary based on our professional judgment in the planning stages of the engagement.
This phase of the engagement for the audit will be performed by the audit supervisor and two staff accountants with direct supervision by the audit manager and partner.
Segment 2 - Year-end testing - substantive testing
During this phase of the audit, our prin cipal objectives will be to assess the risk of material misstatement at the financial statement level and specific assertions, design overall responses to assessed risks and further audit procedures, perform substantive tests, and complete the audit and evaluate audit findings, if applicable.
In order to achieve the desired objectives of this phase of the audit, we will:
Identify significant ri sks and develop a detailed audit plan using the results in Segment 1. Design substantive tests of account balances des igned and modified specifically for the City’s operations and assessed level of risk. Substantive procedures will consist of testing material balance sheet accounts, material revenue and expenditure/e xpense accounts along with various analytical procedures as deemed necessary. In addition, various accounts may be confirmed with outside parties (cash, investments, etc.).
Determine whether our testing su pports the assessed level of risk initially assigned at the financial statement level and at the assertion level.
This phase of the engagement for the audit will be performed by the audit supervisor and two staff accountants with direct supervision by the audit manager and partner.
If any proposed audit adjustments are noted during this phase, we will discuss and explain them, in detail, with the appropriate level of management prior to posting.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
-16-
Timeline (continued)
Segment 3 - Reporting - report preparation/audit conclusion (workpaper review)
During this phase of the audit, our principal objectives will be to evaluat e whether the financial statements, taken as a whole, are free from material misstatement and form an opinion(s) and issue our report.
In order to achieve the desired objectives of this phase of the audit, we will:
Determine whether, based on our substantive testi ng and other procedures, the financial statements, taken as a whole, are free of material misstatement. This will provide the basis for our opinion(s). Review all audit workpapers to ensure that the audit was performed in accordance with the required standards (GAAS, GAGAS, etc.) and prepare drafts of all required reports by the agreed-upon dates. Conduct an independent review of the financial st atement draft by the engage ment’s quality control partner and issue all reports by the agreed-upon dates.
This phase of the engagement will be performed by the audit supervisor and one staff accountant with direct supervision by the audit manager and partner. In addi tion, the engagement’s quality control partner will perform a detailed quality control review of the financial statements.
The above procedures are a general list of procedures to be performed. After our initial review of the City and our detailed risk assessment, we will customize the engagement and gear it toward s the needs of the City and the audit itself. In doing so, we will determine which procedures to perform relative to our risk assessment.
All our audits are customized to each entity, helping to ensure a complete, effective, and efficient audit. The foundation of the above approach is based on open comm unication coupled with a strong knowledge of the City's operations and detailed planning at the initial stages of the audit.
Our firm is dedicated to performing a timely audit engagement. Prior to the start of the audit, we will meet with City staff and decide on adequate timeframes, agreed upon by both the City and us, for the performance of the audit and the release of the financial statements. We will dedicate the necessary resources to meet any agreed upon time frames.
Level of staff and approximate number of hours assigned to each segment
Segment Partner Manager Senior Staff Total
Segment 1 6 5 17 62 90 Segment 2 12 8 27 82 129 Segment 3 15 7 24 19 65 Totals* 33 20 68 163 284 * = excludes Single Audit, GANN Limit and SCR hours
Sample sizes (including for compliance testing)
Our sample sizes will be determined in accordance with the AICPA's Audit and Accounting Guide, Audit Sampling, and will be selected using professional judgment or our TeamMate Analytics software, depending upon circumstance, as permitted by Statement on Auditing Standards. Our methods are designed to provide the most audit coverage without expending excess time. Our sample sizes will depend upon our preliminary assessment of control risk, our planned substantive testing and analytical procedures as well as our professional judgement.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Timeline (continued)
We utilize our Computer Aided Audit Tools (CAAT) software, Teammate Analytics, to draw our audit samples.
The software allows us to generate random samples, systematic samples, stratified samples, attributes samples as well as monetary unit samples (also called probability-proportional-to-size or dollar unit sampling).
Intelligent audit technology
Our audits are designed to be intelligent using our powerful audit software tools (Engagement and Teammate Analytics). In addition, all audit team members are link ed to each other using wireless connections which enables them to share information at an almost real-time speed. Below are some of the benefits of our audit technologies:
We utilize Teammate Analytics, a suite of more than 200 dynamic Computer Aided Audit Tools (CAATs). This allows us to analyze large amoun ts of data in seconds. Using data received directly from the City, we can perform the following: search for duplicate checks, detect transactions occurring on holidays/weekends or during unusual hours, perform Benford’s Law analysis, and identify instances when a vendor has issued multiple invoices with sequential references along with many other te sts. The software empowers our audit teams with the ability to perform powerful, meaningful data analysis which will build upon our other value-added services.
We can create our own analytical schedules allowing for easy analysis of current balances to prior year balance, current vs budget balance, thus reducing significant City staff time. Once your trial balances and financial statements ar e entered into our software, we can observe your financial statements in the field allowing us to notice any variances and address them immediately. We link the financial statement schedules directly to our audit software trial balances, and as a result, we can provide the City with fund financial statements almost imm ediately after importing the trial balances.
We can provide the City with our audited tria l balances which show the coding of the financial statement schedules for ease of revi ew for City staff. These reports show each account coded to a specific financial statement line item/function as well as journal entries posted during the audit. We have the capability to perform effect ive and efficient audits remotely as well.
Analytical procedures
In order to properly utilize analytic al procedures, industry backgrou nd and knowledge are needed. With our firm’s long history and qua lified staff, we believe we have the ne cessary knowledge and experience to effectively apply analytical procedures. We will utilize analytical review procedures throughout our audit of the City.
During the interim phase of our audit, we will compare current and prior year unadjusted balances to determine which areas may need additional analysis; we will also compare current year actual amounts to the City’s annual budget (both original and adopted). During the final phase of our audit, we will perform procedu res like those mentioned above, as well as compare certain financial ratios for curren t and prior years. We w ill also conduct certain “reasonableness” tests. Any significant variances are investigated further through inquiry and other substantive testing as deemed necessary until resolved to our satisfaction. Finally, after we have complet ed our fieldwork, we will compar e current and prior year audited balances, keeping in mind expected relationships ob tained from our knowledge of the City, similar entities and the general economic environment. In addition, we may choose to use various other analytical techniques such as trend analysis, etc.
Unlike other audit firms, we use analytical proc edures to supplement our substantive testing, not supplant them.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Timeline (continued)
Understanding of internal control over financial reporting
Our approach to obtaining an understanding of the City’s internal control over fi nancial reporting will be performed in accordance with professional standards as promulgated by the Americ an Institute of Certified Public Accountants -- our understanding will include the Control Environment , Risk Assessment, Control Activities, Information and Communication, and Monitoring. We will use customized procedures which we have developed internally to evaluate your internal control systems. By combining our customized procedures and our detailed knowledge of the City and its environment, we will be able to provide constructive feedback in areas we feel need improvement. In addition to our customized procedures, we will also perform the following:
Control Environment. Through inquiry of the Ci ty’s personnel, prompted by questionnaires, personal knowledge, and review of the minutes of the governing body meetings, we will obtain an understanding of managements and the governing body’s attitudes, awareness, and actions concerning the control environment, focusing on the substance of the controls rather than their form.
Risk Assessment. Through inquiry of the City ’s personnel and the use of questionnaires, we will obtain sufficient knowledge of the City’s risk assessment process to understand how management considers risks relevant to financial repo rting objectives and decides upon actions to address those ri sks. This will include understanding how management identifies risks, estimate s the significance of thes e risks, assesses the likelihood of their occurrence, and relates them to financial reporting.
Control Activities. Certain control procedures will be docum ented during our analysis of the control environment and the accounti ng system. However, many specific c ontrol procedures will still need to be documented that will focus primarily on the City’s major transaction cycles. As mentioned above, we will test the City’s control procedures on which we intend to rely on for safeguarding assets from unauthorized use or disposition and detecting/preventing unauthorized transactions. Any flow charts, organizational charts and any other manuals, programs, and fi nancial and management information systems will be analyzed during this process.
Information and Communication. Through inquiry of the City’s personnel, we will identify the major types of transactions engaged in by the City. We will become familiar with the treatment of those transactions, including how the transactions are initiated, the related ac counting records, and the manner of processing the transactions. Finally, we will obtain an understanding of the City’s financial reporting process used to prepare financial reports, including the approaches used in making accounting estimates and disclosures.
Monitoring. Through inquiry of the City’s personnel and the use of questionnaires, we will obtain sufficient knowledge of the major types of activities the City uses to monitor internal control over financial reporting. We will also determine how those activities are used to initiate corrective actions.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Timeline (continued)
Approach in determining applicable laws and regulations
We understand the importance of laws and regulations in planning an audit of a local governmental entity and design all our audits to ensure we test transactions fo r compliance. As part of our audit process, our audit team will obtain an understanding of the laws and regulations that will have a direct and material effect on the City’s financial statements. In determining which laws and regulations are applicable to the City’s financial statement audit, we will consult the following sources:
AICPA Audit and Accounting Guide, Audits of State and Local Governments California Government Code (investmen ts, GANN limit requirements, etc.) Applicable State of California laws
U.S. Government A ccountability Office’s Government Auditing Standards (The Yellow Book), latest revision
Applicable contracts/grants of the City
Uniform Administrative Requirements, Cost Prin ciples and Audit Requirements for Federal Awards (OMB Uniform Guidance)
After consulting the applicable sources, we will design our audit to provide reasonable assurance of detecting material instances of noncompliance while continuing to refer to the applicable compliance guideline to ensure changes in compliance are not missed.
Auditing in a remote environment
The availability and use of technology has had a significant impact on the accounting and auditing profession, allowing us to provide professional services across l onger distances and more timely than ever before. We have continued to evolve our abilit y to serve our clients remotely throughout the COVID-19 pandemic and have experienced new efficiencies for both auditor and auditee. We anticipate continuing to perform substantially all our audit work remotely and will work with the City to maximize the remote efficiencies using technology. If the City would like members of the audit team on-site, we will work with City management on determining an acceptable staffing level.
We maintain regular and routine contact with our clients throughout the audi t planning, fieldwork, and conclusion phases of the audit with the use of email, phone calls, secure portals, video conferencing, project tracking schedules, and any other means necessary to ensure the timely completion of the audit by any agreed-upon deadlines. Our audit team is very responsiv e to our clients and we encourage our clients to connect with us throughout the year for any matters that may affect the audit or of a general accounting nature.
We have found this to be mutually beneficial for both our clients and the annual audit work.
Remote auditing has many benefits some tangible, as listed above, others intangible. In performing remote audits, we are bettering our employee’s qu ality of life by reducing unnecessary travel time, reducing traffic congestion on our local freeways while also helping to improve Southern California’s air quality.
CITY OF WILDOMAR
PROPOSAL FOR PROFESSIONAL AUDITING SERVICES
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Timeline (continued)
Proposed audit timing
Auditor
transition:
Meet with
prior auditor
to review
workpapers.
Entrance
conference
to meet with
management
for pre-audit
planning.
Preliminary
risk
assessment
procedures.
Anticipated timing of each segment
June October October /November
Obtain an understanding of
systems, internal controls,
and current-year issues.
Assess and evaluate design
and implementation of key
internal controls (including
IT related).
Perform tests of internal
controls as needed.
Identify control deficiencies
Perform detailed risk
assessment procedures.
Draft internal control
comment letter.
Develop detailed audit plan
- provide management with
a detailed listing of items
needed to perform the audit,
including the timing of when
items are needed.
Perform substantive audit
fieldwork, including
substantive analytical
procedures.
Consider whether audit
evidence is sufficient to
form an opinion.
Conduct exit conference
with management to
discuss proposed entries,
internal control issues, etc.
Determine whether, based
on our substantive testing
and other procedures, the
financial statements, taken
as a whole, are free of
material misstatement.
Review all workpapers.
Evaluate financial
statements and note
disclosures.
Perform final analytical
procedures.
Draft required reports.
Issue final required reports
by or before agreed upon
date.
Present to governing body
as needed.
Condition of records
Our proposed fee assumes the follo wing: the City will be adequately prepared for the audit and the City’s financial operations and working trial ba lance will be consistent from year to year. If, after we receive the working trial balances, we notice there are excessive new accounts over the prior year; or if there are excessive subsequent journal entries; prepared by c lient workpapers do not agree to the working trial balances, there are new funds/functions within the City, etc., or other changes that necessitate a significant amount of time to address, we will need to come to an agreed upon chang e order to addres s any possible additional costs incurred by the firm. If the need for additional work comes to our attention, we will immediately notify City staff. If you choose to have us perform the additional work, then such work will be performed at the same hourly rates applicable to the audit and set forth in an addendum to the contract between the City and our firm.
Management is also responsible for the implementat ion of new standards issued by the Governmental Accounting Standards Board. We will provide reasonable assistance in the preparation of the items, but any significant time needed to complete the financial statements will be billed separately.
Our proposed fee is also dependent on all items request ed being completed in the format requested or in a mutually agreed upon format and uploaded to the Engage ment Organizer hosted by our firm in a timely manner in accordance with the agree-upon audit timeline.
Segment 1 -
Planning/internal
control
Segment 2 -
Substantive
testing/analysis
Segment 3 -
Report
preparation/work
paper review
Audit planning
Attachment A
GOVERNMENT CLIENTS SERVED
CSMFO/
GFOA Successor Housin g
Government Client Years Served Awards Agency Authority
City of El Cajon 06/30/07 to 06/30/21 Yes Yes Yes
City of Exeter 06/30/17 to 06/30/21
City of Woodlake 06/30/17 to 06/30/21
Town of Yucca Valley 06/30/08 to 06/30/21 Yes Yes Yes
City of La Verne 06/30/11 to 06/30/21 Yes Yes Yes
City of San Jacinto 06/30/11 to 06/30/21 Yes Yes
City of Twentynine Palms 06/30/11 to 06/30/21 Yes Yes Yes City of La Mesa 06/30/11 to 06/30/21 Yes Yes
City of Menifee 06/30/14 to 06/30/21 Yes
City of San Marcos 06/30/14 to 06/30/21 Yes Yes Yes
City of Loma Linda 06/30/13 to 06/30/21 Yes Yes Yes
City of Sierra Madre 06/30/12 to 06/30/21 Yes Yes Yes
City of Hawthorne 06/30/16 to 06/30/21 Yes Yes Yes
City of Aliso Viejo 06/30/16 to 06/30/21 Yes No No
City of Claremont 06/30/16 to 06/30/21 Yes Yes Yes
City of Thousand Oaks 06/30/18 to 06/30/21 Yes Yes Yes
City of South Pasadena 06/30/18 to 06/30/20 Yes Yes
City of Rolling Hills Estates 06/30/19 to 06/30/21 Yes
City of Calabasas 06/30/20 to 06/30/21 Yes
City of San Bernardino 06/30/20 to 06/30/21 Yes
City of Ojai 06/30/20 to 06/30/21
City of Beaumont 06/30/20 to 06/30/21 Yes
City of Moreno Valley 06/30/20 to 06/30/21 Yes
City of Lawndale 06/30/20 to 06/30/21
Town of Windsor 06/30/19 to 06/30/20
City of San Dimas 06/30/21
City of Imperial Beach 06/30/21
City of Coachella Agreed upon procedures
City of Canyon Lake Accounting support
City of Yucaipa Accounting support
City of Angels Camp Accounting support
City of Grand Terrace Accounting support
Crestline Villa
ge Water District 04/30/96 to 04/30/21
Crestline-Lake Arrowhead Water 06/30/98 to 06/30/21
San Bernardino Valley Muni Water District 06/30/04 to 06/30/21 Elsinore Valley Municipal Water District 06/30/15 to 06/30/21 Yes Pine Cove Water District 06/30/10 to 06/30/21
Idyllwild Water District 06/30/11 to 06/30/21
Big Bear Area Regional Wastewater 06/30/12 to 06/30/21 Yes Mojave Water Agency 06/30/19 to 06/30/21 Yes
Beaumont Cherry Valley Water District 12/31/17 to 12/31/20 Yes Rosamond Community Services District 06/30/15 to 06/30/21 Rossmoor Community Services District 06/30/05 to 06/30/21 Rim of the World Park & Rec. District 06/30/06 to 06/30/21 Heartlands Communications Fac Auth 06/30/07 to 06/30/21 Heartlands Fire Trainin
g Authority 06/30/07 to 06/30/21
Attachment A
(Continued)
GOVERNMENT CLIENTS SERVED (continued)
CSMFO/
GFOA Successor Housing
Government Client Years Served Awards Agency Authority
Consolidated Fire Agencies 06/30/14 to 06/30/21
Successor Agency to the County of SB 06/30/14 to 06/30/21 Riverside County Habitat Con. Agency 06/30/15 to 06/30/21 Santa Ana Watershed Association 12/31/09 to 12/31/20
Capistrano Bay Community Services
District 06/30/13 to 06/30/21
Ventura County Public Fin Authority 06/30/12 to 06/30/21 Nipomo Community Services District 06/30/16 to 06/30/21 Yes SBIAA 06/30/17 to 06/30/21
WRCOG 06/30/17 to 06/30/21 Yes
San Diego Workforce Partnership 06/30/16 to 06/30/21
Rubidoux Community Services District 06/30/16 to 06/30/21 Conejo Recreation and Park District 06/30/19 to 06/30/21 Upper San Gabriel Valley MWD 06/30/19 to 06/30/21 Yes
March Joint Powers Authority 06/30/19 to 06/30/21
Chino Basin Desalter Authority 06/30/19 to 06/30/21 Yes Mountains Recreation and Conservation 06/30/19 to 06/30/21 Palos Verdes Peninsula Transit Authority 06/30/19 to 06/30/21 Yucca Valley Airport District 06/30/20 to 06/30/21
West Basin Municipal Water District 06/30/20 to 06/30/21 Yes Crestline Sanitation District Accounting support
Running Springs Water District Accounting support
Phelan Pinon Hills Community Services
District Accounting support
Attachment B
City prepared schedule request (electronic versions, if possible) Below is a standard list of prepared by client schedules. It is a broad, general list which will be specifically tailored to both the needs of the City and our firm.
Interim request list
1. General items:
a. Preliminary trial balances with current year budget and actual and prior year actual (preferably in Excel)
b. Copy of th e current budget
c. Access to payroll related files and reports
d. Copy of any significant employee contracts (city manager, department heads, etc.)
e. Non-payroll cash disbursements register (including checks and wire transfers) from 7/1/XX – current so that we can pick our sample for testing f. List of credit cards with names of those assigned
g. Access to invoices and bank statements
h. Access to cash receipts and supporting reports
i. Access to minutes up to the date of our interim procedures j. Report showing top ten vendors and amount of annual purchases with each of these vendors
k. Schedule of legal expe nditures, also include at torney name, address and contact
l. Both the accounting and funding PERS Actuarial Reports applicable for the current fiscal year
m. Copies of any programmatic audits done throughout year (i.e., gas tax audit, Measure A/I, etc.)
2. Perm file:
a. Chart of acc ounts, if updated
b. Employee listing
c. Council member list ing (include any finance type committees) d. Copy of bank signature cards/bank documents – if updated during the current year.
e. Copy of insura nce/bonding documents
f. Copy of reve nue agreements
g. Personnel policies and procedures
h. Accounting policies and procedures
i. Copies of official statements of an y newly issued or previously issued outstanding debt.
Attachment B
(Continued)
3. Cash and investments
a. Copy of annually adopted investment policy
b. The Treasurer's Reports from July 1 of the year under audit through the most current month
c. Bank reconciliations th rough the end of the month of most current month d. Interest apportion ment schedules, including journal entries e. Copy of bank signature cards/bank documents – if updated during the current year.
4. Single audit:
a. Copies of notification s from agencies regarding previous year's single audit reports, if applicable
b. Preliminary schedule of federal expenditures
c. Grant documents and documentation (FEMA, CDBG, etc.).
Year end request list
1. Trail balances (all funds):
a. Working trial balance – by fund and account
b. Revenue and expenditure/expense summary reports (budget vs. actual) – by fund
2. General items:
a. Updated list of current employees
b. Copy of budget adjustments, preferably in excel, by fund c. List of credit cards with names
d. Copy of prior year GFOA/CSMFO award comments, if applicable e. GANN limit calculation and approving resolution
f. Schedule of vendors, including year to date payments g. Schedule of approved, po sted journal entries, including closing entries and access to them
h. Access to council meeting minutes
3. Cash and investments:
a. Reconciliation of cash and investments lead schedule to bank reconciliation b. Detailed supporting sc hedules for cash and in vestments for footnote disclosure, including year-end credit ratings, etc.
c. June bank reconciliation for all bank and invest ment accounts, including a supporting list of outstanding checks and deposits in transit d. June investment report
Attachment B
(Continued)
4. Receivables:
a. Lead schedule of ac counts receivable
b. Supporting documents for any allowance for doubtful accounts, if applicable c. Lead schedule for due from other governments with analysis of subsequent cash receipts
d. Supporting schedule of accounts receivable with reconciliation to subsidiary ledger
e. Aging report for accounts receivable
f. Supporting schedule fo r interest receivable
5. Deferred revenue:
a. Lead schedule and s upporting documents for deferred revenues
6. Capital assets:
a. Lead schedule of changes in capital assets and accumulated depreciation – by type
b. Combining schedules of changes in capital assets and accumulated depreciation – by type (land, CIP, WIP, building, etc) with reconciliations to capital outlay and other supporting detail for additions and deletions c. Calculation of gain/loss on disposal of capital and other assets d. Depreciation schedules/detailed lis tings of capital assets at year-end (including original costs, useful lives, current and accumulated depreciation)
7. Fiduciary fund activity:
a. Schedule of c hanges in funds
8. Prepaid costs and other assets:
a. Lead schedule of pr epaid costs – by fund
9. Inter-fund activities:
a. Lead schedule of due to/from other funds (with reasons for significant balances)
b. Lead schedule of inter-fund transfers (with reasons for significant transfers)
10. Accounts payable:
a. Lead schedule of ac counts payable – by fund and account b. Supporting schedule of accounts payable wi th reconciliation to subsidiary ledger (detailed list by vendor)
c. Supporting schedule of retentions payable – by fund and vendor d. Current OPEB information
11. Accrued liabilities:
a. Lead schedule of a ccrued liabilities – by fund and account b. Supporting schedul e of accrued payroll
c. Analytical review of payroll accrual with reconciliation to subsequent payroll register
Attachment B
(Continued)
12. Long-term liabilities/deferred amounts:
a. Lead schedule of change s in long-term liabilities (including amounts due within one year)
b. Supporting schedules of principal, interest and proceeds of debt – by fund c. Premium/discount amortization schedules
d. Supporting schedule of master leases
e. Supporting schedul e of changes in comp. absences – by type and employee f. Supporting schedule of wo rkers compensation/self insurance claims payable and fund balance designation
g. Pension/OPEB valuatio ns, CalPERS tool, etc. (i ncluding related deferred amounts)
h. Supporting schedule of interest payable
13. Lease commitments, if applicable:
a. Schedule of lease commitments
b. Schedule of leased assets, showing cost and accumulated depreciation c. Copy of lease agreement(s)
14. Analytical review:
a. Preliminary analytical review of revenues and expenditures
13. Revenues and expenditures/expenses:
a. Lead schedule of all significant revenues (property taxes, sales tax, etc) – by fund and accounts
b. Lead schedule of interest revenue
c. Interest allo cation schedule
d. Schedule of tax increment received by the RDA
16. Budget and fund balance:
a. Schedule of changes in budgeted revenues and expenditures – by fund b. Schedule of changes in budgeted transfers
c. Fund balance reconciliation
17. Single audit, if required:
a. Schedule of federal financial assistance
b. Copies of gr ant agreements
c. Schedule of all revenues recognized and deferred
CITY OF WILDOMAR
COMPREHENSIVE DOLLAR COST BID
PROFESSIONAL AUDITING SERVICES
FOR THE FISCAL YEARS ENDING JUNE 30, 2022, 2023 AND 2024
PREPARED BY
ROGERS ANDERSON MALODY & SCOTT, LLP
735 E Carnegie Drive, Suite 100
San Bernardino, CA 92408
LICENSE #2596
FEIN 95-2662063
MARCH 24, 2022
CONTACT PERSONS:
SCOTT W. MANNO, CPA, CGMA
[email protected]
B
RAD WELEBIR, CPA, CGMA, MBA
[email protected]
909.889.0871
Service 2021-2022 2022-2023 2023-2024
City Audit and Related Reports 26,450 $ 26,450 $ 27,575 $ Measure Z Park Fund Report 5,220 5,220 5,455 Wildomar Cemetery District Report 5,220 5,220 5,455 Measure AA Fund Report 3,570 3,570 3,680 Single Audit* Report, if applicable 5,100 5,100 5,250 GANN limit review report 500 500 520 Annual State Controllers Report 2,000 2,000 2,060 Out of pocket expenses - - - T Total for Fiscal Year (not-to-exceed) 48,060$ 48,060 $ 49,995 $ * = for the first major program, each additional major program $3,750.
Scott W. Manno, CPA, CGMA
Partner
City of Wildomar
AUDIT WORK COST PROPOSAL FORM
In accordance with the Request for Proposal for Audit Services issued by the City of Wildomar, Rogers, Anderson, Malody & Scott, LLP hereby submits the following cost proposal:
Certification: Scott W. Manno, CPA, CGMA is entitled to represent Rogers, Anderson, Malody & Scott, LLP, empowered to submit the bid, and is authorized to sign a contract with the City of Wildomar. In addition, we can comply with the requirements of the professional services As stated in our technical proposal, we believe our fee estimate provides a fair and reasonable investment, commensurate with level of service provided and the experience of the audit team members. While we may not be the lowest bidder, that is not our objective. We focus on delivering the best value and price our prospective engagements accordingly. However. we do not want fees alone to be an obstacle in the City's select ion of their auditor. We would be happy to discuss and negotiate such fee issues and responsibilities with you.
Name of Firm: Rogers Anderson Malody & Scott, LLP
Address: 735 E. Carnegie Drive, Suite 100
San Bernardino, CA 92408
Contact name: Scott W. Manno, CPA, CGMA
Contact Phone # 909.889.0871 Fax #: 909.889.5361
Contact email: [email protected]
2022- 2023
270$
185$
145$ Supervisory
Staff accountant
Clerical
145$
110$
65$
110$
65$
Auditors Standard Hourly Billing Rates
Estimate of Cost
2021- 2022
270$
185$
2023 -2024
285$
190$
150$
115$
70$
Position
Partner
Manager
// 2021
RIV #4814-7282-0706 v1
AGREEMENT FOR SERVICES
By and Between
THE CITY OF WILDOMAR,
a municipal corporation
and
ROGERS ANDERSON MALODY & SCOTT, LLP
a California Limited Liability Partnership
AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF WILDOMAR, CALIFORNIA
AND
ROGERS ANDERSON MALODY & SCOTT, LLP
This Agreement for Services (“Agreement”) is entered into as of this 13th day of April 2022 by and between the City of Wildomar, a municipal corporation (“City”) and Rogers Anderson Malody & Scott, a California limited liability partnership (“Service Provider”). City and Service Provider are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by direct negotiations and proposal, the performance of the services defined and described particularly in Section 2 of this Agreement.
B. Service Provider, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Wildomar’s Municipal Code, City has authority to enter into this Services Agreement and the City Manager has authority to execute this Agreement.
D. The Parties desire to formalize the select ion of Service Provider for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Sec tion 20 "Termination of Agreement" of this Agreement, the Term of this Agreement is for three years, with the option of extending the engagement for an additional two years, commencing on the date first ascribed above.
SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE.
(a) Scope of Services . Service Provider agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference.
(b) S chedule of Performance. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Service Provider shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enfor ce the Default provisions of this Agreement and may instead allow Service Provider to continue performing the Services.
SECTION 2. ADDITIONAL SERVICES.
Service Provider shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 3. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Service Provider the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, for the City Audit and Related Reports and all Other Agreed Upon Reports shall not exceed One Hundred Forty Six Thousand One Hundred Fifteen ($146,115.00), unless additional compensation is approved in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. In accordance with California Government Code Section 8546.7, if the Not to Exceed Amount exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement and the Service Provider's books and records related to this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. (b) Each month Service Provider shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor (by sub- category), travel, materials, equipment, supplies, and sub-Service Provider contracts. Sub-Service Provider charges shall be detailed by the following categories: labor, travel, materials, equipment and supplies. If the compensation set forth in subsection (a) and Exhibit “B” include payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of task performed and the amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Service Provider to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be
approved and paid acc ording to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Service Provider for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by Service Provider which are disputed by City, City will use its best efforts to cause Service Provider to be paid within forty-five (45) days of receipt of Service Provider’s correct and undisputed invoice.
(d) Payment to Service Provider for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Service Provider.
SECTION 4. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Service Provider’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Service Provider’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Service Provider’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud.
Acceptance of any of Service Provider’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 16 “Indemnification” and Section 17 “Insurance.”
SECTION 5. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Service Provider in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City withou t the permission of the Service Provider , except those items defined as audit documentation under professional standards promulgated by the American Institute of Certified Public Accountants (AICPA), which will be the property of Service Provider. Upon completion, expiration or termination of this Agreement, Service Provider shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents. Any audit documentation, as described above, will be provided upon written request from the City under direct supervision of Service Provider.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Service Provider in the course of providing the Services pursuant to this Agreement, Service Provider’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
All Final Work Product developed by Service Provider in the course of providing
the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Service Provider, except those items defined as audit documentation under professional standards promulgated by the American Institute of Certified Public Accountants (AICPA), which will be the property of Service Provider. Upon completion, expiration or termination of this Agreement, Service Provider shall turn over to City all such Final Work Product if paid for by the City. This provision specifically excludes Service Providers’ work notes and drafts, which are owned by Service Provider, not City.
SECTION 6. SERVICE PROVIDER'S BOOKS AND RECORDS.
(a) Service Provider shall maintain any and all documents and records demonstrating or relating to Service Provider’s performance of the Services. Service Provider shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Service Provider pursuant to this Agreement. Any and all such documents or records shall be maintained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Service Provider’s address indicated for receipt of notices in this Agreement.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Service Provider’s business, City may, by written request, require that custody of such documents or records be given to the City. Ac cess to such documents and records shall be granted to City, as well as to its successors -in-interest and authorized representatives.
SECTION 7. INDEPENDENT CONTRACTOR.
(a) Service Provider is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Nothing in this Agreement may be construed to be inconsistent with this relationship or status. Service Provider shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Service Provider shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City.
(b) Service Provider shall perform all Services as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Service provider shall be solely responsible for the means, methods, techniques, sequences and procedures in performance of Services. The personnel performing the Services under this Agreement on behalf of Service Provider shall at all times be under Service Provider’s exclusive direction and control. Any terms within this Agreement regarding City directives apply to a concern the result of Service Provider’s provision of service and not the means, methods, or scheduling of the Service Provider’s work. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Service Provider or any of Service Provider’s officers, employees, or agents except as set forth in this Agreement. Service Provider shall not at any time or in any manner represent that Service Provider or any of Service Provider’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither Service Provider, nor any of Service Provider’s officers, employees or agents, shall obtain any privileges or rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Service Provider expressly waives any claim Service Provider may have to any such benefits, privileges or rights.
SECTION 8. STANDARD OF PERFORMANCE.
Service Provider represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Service Provider shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Service Provider shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Service Provider under this Agreement. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Service Provider’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
SECTION 9. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Service Provider shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Service Provider shall obtain any and all licenses, permits and authorizations necessary to perform the Services set forth in this Agreement.
Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Service Provider to comply with this section.
SECTION 10. PREVAILING WAGE LAWS
It is the understanding of City and Service Provider that California prevailing wage laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.
SECTION 11. NONDISCRIMINATION.
Service Provider shall not discriminate, in any way, against any person on the basis of race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement.
SECTION 12. UNAUTHORIZED ALIENS.
Service Provider hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therei n.
Should Service Provider so employ such unauthorized aliens for the performance of the Services and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Service Provider hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
SECTION 13. CONFLICTS OF INTEREST.
(a) Service Provider covenants that neither it, nor any officer or principal of its firm, has o r shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Service Provider’s performance of the Services. Service Provider further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Service Provider agrees to at all times avoid conflicts of interest or t he appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
(b) City understands and acknowledges that Service Provider is, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Service Provider is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (c) City understands and acknowledges that Service Provider will perform non- related services for other governmental agencies and private Parties following the
completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section.
SECTION 14. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Service Provider in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Service Provider. Service Provider shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
(b) Service Provider, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Service Provider gives City notice of such court order or subpoena.
(c) If Service Provider, or any officer, employee, agent or subcontractor of Service Provider, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Service Provider for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Service Provider’s conduct.
Service Provider shall promptly notify City should Service Provider, its officers, employees, agents or subcontractors, be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Service Provider or be present at any deposition, hearing or similar proceeding. Service Provider agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Service Provider. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. Service Provider shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
SECTION 15. INDEMNIFICATION.
(a) Indemnification for Professional Liability. Where the law establishes a professional standard of care for Service Provider’s services, to the fullest extent permitted by law, Service Provider shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from
and against any and all liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees) arise out of, are a consequence of, or are in any way attributable to, in whole or in part, any negligent or wrongful act, error or omission of Service Provider, or by any individual or entity for which Service Provider is legally liable, including but not limited to officers, agents, employees or sub-contractors of Service Provider, in the performance of professional services under this Agreement.
(b) Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Service Provider shall indemnify, protect, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Service Provider, or by any individual or entity for which Service Provider is legally liable, including but not limited to officers, agents, employees or sub-contractors of Service Provider. (c) I
ndem nification from Sub- Service Providers. Service Provider agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every sub-Service Provider or any other person or entity involved by, for, with or on behalf of Service Provider in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Service Provider fails to obtain such indemnity obligations from others as required herein, Service Provider agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Service Provider and shall survive the termination of this Agreement or this section. (d) Cit
y’s Negligence . The provisions of this section do not apply to claim s occurring as a result of City’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 16. INSURANCE.
Service Provider agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Service Provider agrees to provide City with copies of required policies upon request.
SECTION 17. ASSIGNMENT.
The expertise and experience of Service Provider are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Service Provider under this Agreement. In recognition of that interest, Service Provider shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Service Provider’s duties or obligations under this Agreement without the prior written consent of t he City. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 20 “Termination of Agreement.” City acknowledges, however, that Service Provider, in the performance of its duties pursuant to this Agreement, may utilize sub-contractors.
SECTION 18. CONTINUITY OF PERSONNEL.
Service Provider shall make every reasonable effort to maintain t he stability and continuity of Service Provider’s staff and sub-contractors, if any, assigned to perform the Services. Service Provider shall notify City of any changes in Service Provider’s staff and sub-contractors, if any, assigned to perform the Servi ces prior to and during any such performance.
SECTION 19. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination to Service Provider. In the event such notice is given, Service Provider shall cease immediately all work in progress. (b) Service Provider may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City. (c) If either Service Provider or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Service Provider, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Service Provider or City, all property belonging exclusively to City which is in Service Provider’s possession shall be returned to City. Service Provider shall furnish to City a final invoice for work performed and expenses incurred by Service Provider, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
SECTION 20. DEFAULT.
In the event that Service Provider is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Service Provider for any work performed after the date of default. Instead, the City may give notice to Service Provider of the default and the reaso ns for the default. The notice shall include
the timeframe in which Service Provider may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Service Provider is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Service Provider does not cure the default, the City may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Service Provi der’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 21. EXCUSABLE DELAYS.
Service Provider shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Service Provider. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 22. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Service Provider in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 23. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Wildomar
Attn: City Manager
23873 Clinton Keith Rd., Suite 201
Wildomar, CA 92595
To Service Provider: Rogers Anderson Malody & Scott, LLP Attn: Scott W. Manno, CPA, CGMA
735 E. Carnegie Dr., Suite 100
San Bernardino, CA 92408
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 24. AUTHORITY TO EXECUTE.
Each of the signatories hereto represents and warrants that he or she is competent and authorized to enter into this Agreement on behalf of the Party for whom he or she purports to sign. Each Party hereto agrees to defend, indemnify, and hold harmless the other Parties hereto against all claims, suits, actions, and demands, including necessary expenses of investigation and reasonable attorneys' fees and costs, arising out of claims that its signatory was not competent or so authorized to execute this Agreement.
SECTION 25. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under the Wildomar Municipal Code.
SECTION 26. BINDING EFFECT.
This A greement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 27. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Service Provider and by the C ity. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Wildomar Municipal Code. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void. The City’s City Manager may, but is not required to, make minor amendments not affecting substantive terms without further authorization fro m the City Council. The City Council hereby authorizes the City Manager to execute any such amendments as required by this Agreement or that do not otherwise reduce City’s rights under this Agreement. All other amendments shall be approved by the City Council.
SECTION 28. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Service Provider shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 29. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in
state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 30. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 31. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Service Provider and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 33. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF WILDOMAR
___________________________
Dan York
City Manager
ATTEST:
___________________________
Janet Morales, CMC
City Clerk
APPROVED AS TO FORM
_______________________________
Thomas D. Jex
City Attorney
___________________________________
By: By:
_________________________________
Its: ______________________________ Its: ________________________ NOTE: SERVICE PROVIDER’S SIGNATURES SHALL BE DULY NOTARIZED,
AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY
BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION,
OR OTHER RULES OR REGULATIONS APPLICABLE TO SERVICE
PROVIDER’S BUSINESS ENTITY.
RIV #4814-7282-0706 v1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF
On ______________, before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER____________________________
__________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_________________________________________
_________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
RIV #4814-7282-0706 v1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF
On ______________, before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER____________________________
__________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_________________________________________
_________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
RIV #4814-7282-0706 v1
EXHIBIT "A"
SCOPE OF SERVICES
See attached Rogers Anderson Malody & Scott, LLP Technical Proposal
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EXHIBIT “B”
COMPENSATION
See attached Rogers Anderson Malody & Scott, LLP Cost Proposal
RIV #4814-7282-0706 v1
Exhibit C
Insurance Requirements
Service Provider shall procure and maintain, for the duration of the Agreement, 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 Service Provider, its agents, representatives, or employees.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Service Provider has no owned autos, Code 8 (hired) and 9 (non- owned), with limit no less than $1,000,000 per accident for bodily injury and proper ty damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(Not required if Service Provider provides written verification it has no employees)
4. Professional Liability (Errors and Omissions) Insurance appropriate to the Service Provider’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. The Retroactive Date must be shown and must be before the date of the Agreement or the beginning of Agreement work. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement of work. If coverage is canceled or non- renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the Agreement effective date, the Service Provider must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work. A copy of the claims reporting requirements must be submitted to the City for review.
If the Service Provider maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Service Provider. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
RIV #4814-7282-0706 v1
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Service Provider including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Service Provider’s in surance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this Agreement, the Service Provider’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self -insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Service Provider’s insurance and shall not contribute with it.
Notice of Cancellation
Service Provider shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the requir ed polices are reduced; (3) or the deductible or self -insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, Service Provider shall forthwith obtain and submit proof of substitute insurance.
Waiver of Subrogation
Service Provider hereby grants to City a waiver of any right to subrogation which any insurer of said Service Provider may acquire against the City by virtue of the payment of any loss under such insurance. Service Provider agrees t o obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. However, the Workers’ Compensation pol icy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Service Provider, its employees, agents and subcontractors.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. The City may require the Service Provider to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The
RIV #4814-7282-0706 v1
policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
Service Provider shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Service Provider’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Subcontractors
Service Provider shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Service Provider shall ensure that City is an additional insured on insurance required from subcontractors.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
CITY OF WILDOMAR – CITY COUNCIL
Agenda Item #1.10
CONSENT CALENDAR
Meeting Date: April 13, 2022
______________________________________________________________________
TO: Mayor and City Council Members
FROM: Dan York, City Manager
Daniel Torres, Community Services Director
SUBJECT: Consideration of Adoption of a City Flag Display Policy
STAFF REPORT
RECOMMENDATION:
Staff recommends that the City Council consider and adopt the attached City Flag Display Policy
BACKGROUND:
The proposed Flag Display Policy sets forth the procedures and standards for the display of flags at City facilities, including the display of commemorative flags at City Hall, Marna O’Brien Park, Fire Station 61, and Wildomar Cemetery District.
DISCUSSION:
City Hall has one flag pole and the City has historically displayed the United States Flag, the California State Flag, and the Wildomar City Flag. These flags are also displayed at other City facilities such as Marna O’Brien Park, Fire Station 61 and the Wildomar Cemetery District. However, the City does not have a Council adopted policy regarding the display of such flags or the display of commemorative flags.
Staff has prepared a draft City Flag Display Policy relating to the display of flags for Council’s consideration. The draft Flag Display Policy outlines the procedures and standards for the display of flags at City facilities, including the display of commemorative flags at City Hall Marna O’Brien Park, Fi re Station 61, and Wildomar Cemetery District .
As set forth in the proposed policy, commemorative flags may be displayed only after being authorized by the City Council and as an expression of the City’s official sentiments.
Upon City Council authorization of the display of a commemorative flag, the City would display it at City Hall and/or at the sites previously mentioned during the designated period.
The City’s flagpoles are not intended to serve as a forum for free expression by the public.
Rather, the City's flagpoles are to be used exclusively by the City, where the City Council may display a commemorative flag as a form of government expression. The City will not display a commemorative flag based on a request from a third party, nor will the City use its flagpoles to sponsor the expression of a third party. Instead, the policy states that such flag, as an expression of the City’s official sentiments, must be requested by a member of the City Council itself.
The Government Speech Doctrine, defined by the United States Supreme Court, establishes that a government organization, such as the City of Wildomar, may advance its own expression without requiring viewpoint neutrality when the government itself is the speaker, so long as its expression does not show religious preference or encourage a certain vote in an election. Therefore, the City could take action, based on the proposed Policy, to display a commemorative flag as a form of government expression, so long as the commemorative flag does not show religious preference or encourage a certain vote in an election. Consequently, if the City Council authorizes display of a commemorative flag, the display of the commemorative flag would be an exercise of government expression, where the City is the speaker (i.e., government speech).
FISCAL IMPACT:
None
ATTACHMENTS:
City Flag Display Policy
CITY OF WILDOMAR POLICY ON DISPLAY OF FLAGS
I. Purpose
A. The Wildomar City Council desires to establish clear guidelines regarding:
1. The outdoor display of the United States Flag, the California State Flag, and the City of Wildomar Flag at City facilities or City-owned or City-maintained flagpoles; and
2. The outd oor display of commemorative flags at the Wildomar City Hall and _________________
B. In adopting this Policy, the City C ouncil desires to reflect the d ignity of the flags flown on flagpoles or displayed at City-owned or City-maintained facilities, as wel l as the role of the Wildomar City Hall as an inclusive gathering location and local symbol of government and democracy.
C In a dopting this Po licy, the City C ouncil declares that flagpoles ow ned or maintained by the City of Wildomar are not intended to serve as a forum for free expression by the public, but rather as a non-public forum for the display of the United States, State of California, City of Wildomar, and any commemorative flag authorized by the City Council as an expression of the City Council's official sentiments (government speech).
II. Policy
A. Conformance with Federal and State Regulations. Flags shall be displayed in accordance with Fe deral and State statutes and regulations, including, but no t lim ited to, United States C ode, Title 4, Chapter 1 and Cali fornia Government Code section 430 et seq., and this Policy.
1. Per California Government Code sect ion 431(a), the Fla g of the United States and the Flag of the State of California shall be prominently displayed upon or in front of public buildings of the City.
2. Per California Government Code sect ion 434.7, any Flag of the United States or Flag of California that the City purchases must be made in the United States.
3. The United State s Flag may only be flown at half-staff in accordance with the guidelines set forth at https :// www.usa.gov/flag. The St ate of California Flag shall be flown at half-staff if the United States Flag is flown at half-staff or on order of the Governor.
B. City Facilities other than the Wildomar City Hall. At fa cilities that the City owns or maintains (other than facilities maintained by other governmental entities), there may be one flag pole where the United States Flag shall be flown and the State of California flag may be flown as described in Section II.
C. Wildomar City Hall.
1. Ther e shall be flagpoles at the Wildomar City Hall to fly the following flags in the manner described below: Flag of the United States, Flag of the State o f California, Flag of the City of Wildomar, and any approved commemorative flag.
2. The City of Wildomar Flag shall fly at h alf-staff if ei ther the United States or California Flag is at half-staff. The Mayor may order the City of Wildomar Flag to fly at half-staff at the death of a current or former City Council Member or current City staff member or a histo rically significant member of the community.
3. C
ommemorative Flag.
a. As expression of the City’s official governm ent speech, the City Council may authorize the display of a com memorative flag to fly at the Wildomar City Ha ll and
________________________ flagpoles only.
b. The City Council shall only consider a req uest to display a commemorative flag if the req uest is m ade by a mem ber of the Wildomar City Council and another City Council member agrees to place the discussion to authorize such display on the ag enda for a regular or special City C ouncil meeting.
Requests t o fly a comm emorative flag by mem bers of the public will not be considered.
c. At a noticed and age ndized City C ouncil meeting, a majority of C ouncil Members must agree t o display the commemorative flag.
d. Commemorativ e flags s
hall be displayed for a pe riod of time
that is r easonable or custom ary for the subject that is to be commemorated, but n o longer than thirty ( 30) consecutive days.
e. Commemorativ e flags must be eit her purchased by the City or temporarily donated for the City’s use and must be cl ean, without holes and tears, and be made of an all-weather fabric.
Commemorative flags must be the same size or smaller than the United States and California flags that are flown. The City will not be responsible for the condition of the commemorative flag once flown.
f. If any other flag is flown at half-sta ff, the commemorative flag will also be flown at half-staff.
g. A “commemor ative flag” as defined in this Policy shall mean a flag that identifies with a s pecific histo rical event, cause, nation or group of people that the City Council choses to honor or commemorate consistent with the City’s mission and priorities. The following are not allowed as Commemorative Flags and will not be considered by the City Council:
i. F
lags of a particular religious movement or creed to
avoid the appearance of City government endorsing
religion or a particular religious movement or creed;
ii. Flags of a political party to avoid the appearance of City government endorsing a political party; and
iii. Flags advocating a certain outcome in an election.
III. Procedures
A. N o other flag shall be placed above the United States Flag and no other flag shall be larger than the United States Flag. Other flags may be flown at the same height and in the same size, in accordance with this Policy. Where both the United State Flag and the California State Flags are flown, they shall be of the same size.
B. Flags should be hoisted briskly and lowered ceremoniously. The United States Flag should be hoisted first and lowered last.
C. Flags shall be displayed during operating hours on all days on which the City is open for business, and on national and State holidays. Flags may be displayed twenty -four (24) hours a day as long as they are illuminated during darkness.
D. Flags shall not be displayed during inclement weather, unless all -weather flags are used and are illuminated during darkness.
E. When flags are displayed on a single pole, the order from top to bottom shall be: the United States Flag, the California State Flag, and, if displayed, the City of Wildomar Flag.
F. When the flags are flown from adjacent flag poles, the United States Flag shall be flown at the highest point of honor, which is the furthest point to the left from the standpoint of the observer ("the flag's right").
G. When a flag is displayed at half-staff, it shall first be hoisted to the peak for a moment and then lowered to half-staff position. Before being lowered at the end of the day or when taken down, the flags shall again be hoisted to the peak for a moment and then fully lowered.
CITY OF WILDOMAR – CITY COUNCIL
Agenda Item #1.11
CONSENT CALENDAR
Meeting Date: April 13, 2022
______________________________________________________________________
TO: Mayor and City Council Members
FROM: Robert Howell, Administrative Services Director
SUBJECT: Adopting an Administrative Policy: “Family Care & Medical Leave, and Pregnancy Disability Leave Policy.”
STAFF REPORT
RECOMMENDATION:
Staff recommends that the City Council approve the adoption of the City of Wildomar’s “Family Care & Medical Leave, and Pregnancy Disability Leave Policy, ” and remove all references to the Family Medical Leave Act (FMLA) from the City’s Personnel Rules.
DISCUSSION:
The City, in its Personnel Rules, references the California Family Rights Act (CFRA), the Family Medical Leave Act (FMLA) and the California Pregnancy Disability Law (PDL), and refers staff to an Administrative Policy for guidance. However, upon a review of the City’s Administrative Policies by the City’s The City Attorney’s office, it was noticed that the City had not created an Administrative Policy for these laws. Part of the reason of the review was that the CFRA had been updated in January 2021 to include employers with as few as 5 employees.
The Administrative Policy, along with the related forms, creates the process to follow and the guidance for Human Resources to give staff when a City employee needs a leave of absence for a qualifying reason under the CFRA or PDL.
The City Attorn ey’s o ffice has also recommended that all references to the FMLA be stricken from the City’s Personnel Rules as the City is not subject to the FMLA because the City has fewer than 50 employees.
Staff has reviewed the Administrative Policy and the related forms with The City Attorney’s office and concurs with the recommended policy, forms, and Personnel Rules changes. The proposed policy and its related forms are attached for your review.
FISCAL IMPACT:
There is no fiscal impact with the adoption of the proposed policy and forms.
Submitted by: Approved by:
Robert Howell Dan York
Administrative Services Director City Manager
ATTACHMENTS:
Family Care & Medical Leave, and Pregnancy Disability Leave Policy CFRA Notice of Eligibility for Non-Pregnancy Related Leave CFRA/PDL Certification of Health Care Provider for Employee’s Serious Health Condition CFRA Certification of Health Care Provider for a Family Member’s Serious Health Condition
Certification of Qualifying Exigency for Military Family Leave CFRA Designation Notice for Leave other that Pregnancy Related PDL Notice of Eligibility and Rights & Responsibilities for Pregnancy Related Leave PDL Designation Notice for Pregnancy Related Leave
CITY OF WILDOMAR
FAMILY CARE & MEDICAL LEAVE,
AND PREGNANCY DISABILITY LEAVE POLICY
I. PURPOSE:
To provide employees with information about and establish guidelines for the taking of family care and medical leave, in accordance with the California Family Rights Act (“CFRA”), and the California Pregnancy Disability Leave Law (“PDL”).
II. POLICY:
To the extent not already provided for u nder current leave policies and provision, the City of Wildomar (the “City”) will provide family and medical care leave for eligible employees as required by state law. Additional definitions and other provisions go verning employees' rights and obligations under the CFRA and the PDL not specifically set forth below are set forth in the California Department of Fair Employment and Housing’s CFRA regulations (2 C.C.R. § 11087 et seq.) and PDL regulations (2 C.C.R. § 11 035 et seq .). This Policy is deemed to include such regulatory provisions, including subsequent revisions to such regulatory provisions.
III. FAMILY CARE AND MEDICAL LEAVE:
A. Eligibility: To be eligible for CFRA leave, an employee must have been employed by the City for at least 12 months prior to the date on which the CFRA leave is to commence, and have worked at least 1,250 hours over the 12-month period preceding the CFRA leave.
B. Qualifying Reasons for CFRA Leave: Employees meeting the eligibility requirements under Section III.A. may take CFRA leave for any of the following qualifying reasons:
1. The birth of a child of the employee and in order to care for such child.
2. The placement of a child with the employee for adoption or foster care of the child by the employee and in order to care for that child.
3. Providing care for a spouse, child, parent , grandparent, grandchild, sibling, or domestic partner with a serious health condition.
4. The employee's own serious health condition.
CFRA also provides for military exigency leave, which is addressed under Section V of this Policy. The PDL also provides for leave for employees with a serious health condition on account of pregnancy, childbirth, or related medical conditions, and that leave is addressed under Section IV.
C. Child: Leave may be taken under Section B.1., B.2., or B.3 under CFRA by an employee for a "child" who is any of the following: 1) a biological child; 2) an adopted child; 3) a foster child; 4) a stepchild; 5) a legal ward of the employee; 6) a child to whom the employee stands in loco parentis; 7) a child of a domestic partner
D. In loco parentis:
1. For purposes of this Policy an employee stands in loco parentis by providing day- to-day care or financial support with demonstrated intent of assuming the
responsibilities typically held by a parent.
2. Whether an employee stands in loco parentis to a child for purposes of this Policy will be determined by the City on a case-by-case basis, and the City may require reasonable documentation to support an employee's claim of providing either day- to-day care or financial support for the child.
E. Spouse: The definition of spouse expressly includes individuals in lawfully recognized same sex marriages, common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into at least one state. In addition, the regulatory definition of spouse has moved from “state of residence” rule to “place of celebration” rule in which to look to the law of the place in which the marriage was entered into as opposed to the law of the state where the employee resides.
F. Parent: Parent means a biological, foster or adoptive parent, a stepparent, a legal guardian, other person who stood in loco parentis to the employee when the employee was a child, or parent-in-law. A biological or legal relationship is not necessar y for a person to have stood in loco parentis to the employee as a child.
G. Domestic Partner: A registered domestic partner as defined by Family Code 297 through 297.5.
1. Two adults who have chosen to share one another’s lives in an intimate and committed caring relationship.
2. Domestic partnership is established in the state of California when both persons file a Declaration of Domestic Partnership with the Secretary of State and the time of the filing all of the following requirements are met:
a. Neither persons are married to someone else nor is a member of another domestic partnership unless otherwise terminated, dissolved, or adjudged a nullity;
b. Both persons are at least 18 years of age and are not related by blood in any way that would prevent them from being married in California; and c. Both persons are capable of consenting to domestic partnership.
H. Serious Health Condition: A serious health condition is an illness, injury, impairment, or physical or mental condition that involves the employee or a Covered Family Member1 that makes the employee unable to work. Specifically it involves either inpatient care or continuing treatment or supervision by health care provider as follows:
1. “Inpatient care” means a stay in a hospital, hospice, or reside ntial medical care facility, any subsequent treatment in connection with such inpatient care, or any period of incapacity. A person is considered an “inpatient” when a health care facility formally admits the person to the facility with the expectation that the person will remain at least overnight and occupy a bed, even if it later develops that such person can be discharged or transferred to another facility and does not actually remain overnight.
1 For purposes of this Policy, a “c overed family member” means: 1) a child as defined in Section III.C; 2) a parent as defined in Section III. F; 3) a spouse as defined in Section III.E, 4) a domestic partner as defined in Section III.G; 5) a Sibling; 6) a Grandparent; and/or 7) a Grandchild.
2. “Continuing treatment or supervision by a health care provider ” means and includes any one or more of the following:
a. Treatment by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services ( e.g. physical therapist) under orders of, or on referral by, a health care provider, with the first visit being within seven days of the first day of incapacity;
b. In-person treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervisi on of the health care provider; or
c. Any period of incapacity, or treatment for such incapacity, due to a chronic serious health condition, whether or not in-person treatment is received during that time, or whether the resulting absence lasts fewer than three days. A chronic serious health condition is one which:
i. Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; and
ii. Continues over an extended period of time (including recurring episodes of a single underlying condition); and
iii. May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
d. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease; or e. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for either:
i. Restorative surgery after an accident or other injury; or ii. A condition that would likely result in a period of incapacity of more than three consecutive days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).
3. “Incapacity” means the inability to work, attend school, or perform other regular daily activities due to a serious health condition, its treatment, or the recovery that it requires.
I. Amount of Leave Entitlement: Provided that all applicable conditions of Section III are met, an employee may take a maximum of 12 workweeks of CFRA leave in a rolling 12- month period measured backwards from the date the employee uses any CFRA leave.
1. Employees taking CFRA leave for the birth, adoption, or foster care of their child must initiate and complete any CFRA leave within one year of the birth of the child or placement of the child with the employee for adoption or foster care.
2. An employee’s CFRA leave does not need to be consecutive, but can be cumulative within a 12-month period.
3. Industrial injury leaves and all non-industrial injury leaves are CFRA leaves if they qualify as serious health conditions.
J. Concurrent Use of Accrued Paid Leaves: Leave taken under this Policy is unpaid.
Employees may elect or may be required to use their accrued leave balances concurrently with CFRA leave, as provided below. When an employee elects or is required to use the employee’s accrued leave balances, the employee may specify in writing the order in which the employee would prefer to exhaust accrued leave balances. If the employee fails to designate the order of exhaustion, the City will exhaust the leave balances in the following order: sick leave (subject to the terms of Section III.J.1., below), vacation, banked holiday, floating holiday, management leave. The paid leave shall run concurrently with the CFRA leave and shall not extend the employee’s entitlement to CFRA leave.
1. Sick leave: Employees are required to coordinate all accumulated sick leave concurrently when CFRA leave is taken for the employee’s own serious health condition. Employees may elect to so coordinate their accumulated sick leave when CFRA leave is taken for any other reason under Section III.B. of this Policy.
2. Other paid leaves: Employees are required to coordinate all other accrued paid leaves of absence, including but not limited to, compensatory time off, management leave, vacation, and holiday leave, when taking CFRA leave for any reason.
3. Coordination with Wage Replacement Plans: If an employee who is on CFRA leave is also receiving a wage replacement payment from Short Term Disability, Long Term Disability, and/or Workers’ Compensation, the employee and the City may mutually agree to coordinate the employee’s accrued paid leaves with t he amount received from the wage replacement plan, up to an amount equal to the employee’s regular salary.
K. Intermittent or Reduced Schedule Leave: Intermittent CFRA leave is leave taken on an as-needed basis in increments of minutes, hours, or days. A reduced schedule CFRA leave involves a reduction in the number of hours per day or per week that an employee regularly works, with the employee substituting CFRA time for hours not worked. The minimum CFRA leave increment that can be taken by an employee is 0.25 hours.
1. Calculation of Intermittent or Reduced Schedule Leave: The maximum equivalent number of hours to which an employee is entitled during the 12 -week period will be based on the employee's regularly scheduled workweek. For example, an employee who is regularly scheduled to work 40 hours per workweek will be entitled to a maximum of 480 hours of CFRA leave, whereas, an employee who is regularly scheduled to work 32 hours per workweek will be entitled to a maximum of 384 hours of CFRA leave. In calculating this amount for employees with a varying schedule, the City will use an average of the employee's workweeks within the 12 -month period immediately preceding the intermittent or reduced schedule leave.
2. Impact on Salary: Where permitted by applicable state and federal wage and hour laws, the City may make deductions from an employee’s salary for all hours of leave taken as intermittent leave, unless the employee is entitled or required to coordinate paid leave. Such deductions do not affect the employee’s classification as exempt or nonexempt for purposes of the Fair Labor Standards Act.
3. Inclusion of Scheduled Overtime: If an employee normally would be required to work overtime hours, but is unable to do so because of a CFRA-qualifying reason that limits the employee’s ability to work overtime, the hours that the employee would have been required to work may be counted against the employee’s CFRA entitlement, as the employee would be considered to be using intermitten t or reduced schedule leave. For example, if an employee is normally required to work 50 hours in a particular workweek, but because of a CFRA-qualifying reason, the employee works only 40 hours that week, the employee would use 10 hours of CFRA-protected leave out of the 50-hour workweek.
4. Conditions for Taking Intermittent or Reduced Schedule Leave
a. CFRA leave taken for the employee’s own serious health condition, or the serious health condition of the covered family member, as defined in Footnote 1 above, or for military caregiver leave under Section V.B. of this policy, may be taken intermittently or on a reduced leave schedule when medically necessary (as distinguished from voluntary treatments and procedures).
b. Military exigency leave under section V.A. of this Policy may be taken on an intermittent or reduced schedule basis without limitation.
c. Leave taken following the birth, adoption, or placement of foster care of a child may be taken on an intermittent or reduced schedule basis, subject to the conditions set forth in Section III.K.6., below.
5. Temporary Transfer:
a. Required by the City: The City may require that the employee temporarily transfer to an available alternative position for which the employee is qualified and which provides equivalent pay and benefits and that better accommodates recurring leave periods than the employee’s regular position.
b. Requested by Employee : An employee on intermittent or reduced schedule CFRA leave for foreseeable and planned medi cal treatments may request a transfer to an open and available position for which the employee is qualified, if the duties of that position would better accommodate the employee’s intermittent or reduced schedule CFRA leave. Transfers will not be consider ed under this Section when the intermittent or reduced schedule CFRA leave is unscheduled, such as in the case of chronic conditions.
6. Leave Taken for Baby Bonding: The basic minimum duration of a leave taken for the birth, adoption, or foster care of a child shall be two weeks. However, the City will also grant two requests for shorter leave periods in the applicable one - year period.
L. Employee Notice : Employees requesting leave under the CFRA must notify their supervisor in accordance with the rules set forth below. Employees will provide the
supervisor with sufficient information to make the City aware that the employee needs CFRA leave, and the anticipated timing and duration of that leave. Supervisors must forward any such requests to Talent Attraction and Development for review and approval.
Employees may also provide notice of requested CFRA leave to Talent Attraction and Development directly.
1. Foreseeable Events: An employee must provide the City with at least 30 days’ advance notice before the date the leave is to begin, or must provide notice as soon as is practicable, normally the same business day or next business day if the employee is off work when the employee learns of the need for leave. If the employee provides less than 30 days’ advance notice, the City may require explanation of why 30 days’ advance notice was not practicable.
a. In any case in which the need for CFRA leave is foreseeable based on one of the circumstances listed below in sub-section b., the employee shall make a reasonable effort to schedule any planned medical treatment or supervision so as not to unduly disrupt the operations of the City.
However, any such scheduling shall be subject to the approval of the health care provider of the employe e or the covered family member as defined in Footnote 1 above.
b. The need for leave is considered “foreseeable” when it is taken for any of the following reasons:
i. Planned medical treatment for a serious health condition of the employee.
ii. Planned medical treat ment for a serious health condition of a family member.
iii. An expected birth, or placement for adoption or foster care.
c. If an employee fails to provide the requisite 30 -day advance notice for foreseeable events without any reasonable excuse for the delay, the City reserves the right to delay the taking of the leave by up to 30 days after the date the employee provides notice of the need for CFRA leave.
2. Unforeseeable Events: If an employee requires CFRA leave for an unforeseeable event, the employee is required to provide notice to the City as soon as is practicable.
3. Notice of Intermittent/Reduced Schedule Leave: The notice requirements for foreseeable intermittent or reduced schedule leaves shall be the same as for other foreseeable leaves, and the notice requirements for unforeseeable intermittent or reduced schedule leave shall be the same as for other unforeseeable leaves.
4. Contents of Notice: All requests for CFRA leave should include the anticipated date(s) and duration of the leave and be sufficient to make the City aware that the employee needs leave under the CFRA. The employee must state the reason the leave is needed, by reference to the list in Section III.B. of this Policy. When the employee provides notice, it may not contain sufficient information for the City to determine whether the employee’s leave could be for a CFRA-qualifying purpose.
In such cases, the City may follow up with the employee for additional information, and the employee is required to respond to the same. However, the employee shall not be required to provide the City with a diagnosis.
5. Changes to Dates of Leave: The employee must advise the City as soon as practicable when the employee learns that the dates of the CFRA leave may change.
6. Requests for Extension: Any requests for extensions of a CFRA leave must be received at least five business days before the date on which the employee was originally scheduled to return to work, where practicable, and must include the revised anticipated date(s) and duration of the CFRA leave. If the employee has exhausted the employee’s leave entitlemen t under Section III.I., the City will evaluate on a case-by-case basis whether additional leave may be available as a reasonable accommodation for the employee's own serious health condition; however, any such additional leave shall not be subject to the p rovisions of this Section III.
M. City Response to a Request for CFRA Leave or Request for Extension - Eligibility Notice: Within five business days of an employee’s request to take CFRA leave, the City shall provide the employee with a written Eligibil ity Notice. The Eligibility Notice is not a designation of the employee being on CFRA Leave. The Eligibility Notice shall include the following information:
1. Whether the employee is eligible to take CFRA leave. If the employee is ineligible for CFRA leave, the notice will include the reason(s) why the employee is ineligible.
2. Whether the employee has exhausted the employee’s 12-week CFRA entitlement.
3. Whether additional information, such as a medical certification, is required from the employee in order to process the employee’s request for CFRA leave or request for extension.
4. The employee’s rights and responsibilities under the CFRA, which will include a statement of whether the employee is required to provide a medical certification or recertification. A statement requiring a medical certification will also advise the employee of the anticipated consequences of the employee’s failure to provide adequate notice.
5. If the employee has requested an extension of leave for the employee’s own serious health condition but has exhausted the leave entitlement under Section III.I., the City will advise whether additional leave will be granted as a reasonable accommodation; however, any such additional leave shall not be subject to the provisions of this Section III.
N. Medical Certification and Recertification: Any request for CFRA leave for an employee’s own serious health care condition or for CFRA leave to care for a family member with a serious health condition must be supported by medical certification from the treating health care provider. Employees are encouraged to use the City's medical certification form to ensure that all pertinent information is obtained. Any request for an extension of CFRA leave also must be supported by a medical certification from the treating health care provider. Again, employees are enc ouraged to use the City's medical certification to ensure that all pertinent information is obtained.
1. Timing of Request for Medical Certification: The City will request medical certification:
a. Within five business days after an employee requests fo reseeable leave; or
b. Within five business days after an employee provides notice of an unforeseeable leave, or within five business days after an unforeseeable leave commences, whichever is later.
2. Timing for Employee’s Return of the Medical Certific ation: All medical certifications and recertifications must be returned to the City within 15 days from the City request, regardless of whether the leave is foreseeable or unforeseeable.
Exceptions to this may be granted when it is not practicable to pro vide the certification or recertification within 15 days, despite the employee’s diligent, good faith efforts to do so.
3. Certification for Serio us Health Condition of Covered Family Member : The employee must have the patient’s treating health care phys ician complete a medical certification form when requesting family leave to care for a Covered Family Member (as defined in Footnote 1, above) with a serious health condition.
Employees are encouraged to use the City’s medical certification form to ensure that all pertinent information is obtained.
a. Medical Recertification: If the employee requests additional leave beyond the time period which the health care provider originally estimated that the employee needed to take care of a Covered Family Member, the City may request a recertification from the employee.
4. Certification for the Employee’s Own Serious Health Condition:
a. First Opinion: The employee must have the employee’s health care physician complete a medical certification form when requesting CFRA leave for the employee’s own serious health condition. Employees are encouraged to use the City's medical certification form to ensure that all pertinent information is obtained.
b. Second and Third Opinions: If the City has reason to doubt the validity of the certification provided by the employee, the City may require the employee to obtain a second opinion from a doctor of the City’s choosing at the City’s expense. If t he employee’s health care provider and the doctor providing the second opinion do not agree, the City may require a third opinion, also at the City’s expense, performed by a mutually agreeable doctor who will make a final determination that shall be binding on both the City and the employee.
c. Medical Recertification: The City may request recertification of a medical condition upon the expiration of the time period which the health care provider originally estimated, if additional CFRA leave is requested.
5. Certification for an Employee’s Return to Work:
a. Returning from a Continuous Leave: As a condition of restoration to the employee’s former position, an employee taking continuous leave under the CFRA is required to provide the City with certification from the employee’s health care provider stating that the employee is able to resume essential work functions. An employee who fails to provide the certification may have reinstatement delayed.
b. Returning from an Intermittent or Reduced Schedule Leave: In addition to the requirement in Section 5.a., above, if the em ployee is on intermittent or reduced schedule leave, the City may require a fitness for
duty certification at fixed intervals not exceeding every 30 days if there are reasonable safety concerns. “Reasonable safety concerns” means a reasonable belief of significant risk of harm to the employee or others.
c. Contents of Certification: The City will provide the employee with a form and a copy of the employee’s job description for the employee health care provider to review in completing the fitness for duty certification, and employees are encouraged to use the City’s form to ensure that all pertinent information is obtained. The employee must provide a complete and sufficient fitness for duty certification. If the employee’s health care provider releases the employee back to work with restrictions, the City will engage in the interactive process to determine what reasonable accommodation, if any, will permit the employee to return to work in accordance with the ADA and the FEHA.
6. Employee’s Failure to P rovide a Medical Certification or Recertification: If the employee fails to timely provide a complete and sufficient medical certification when requested, the request for CFRA leave may be denied, delayed until a sufficient certification is provided. Emp loyees will be advised of these consequences in connection with any request by the City for medical certification or recertification.
O. City’s Designation of Leave: Absent extenuating circumstances, within five business days after the City has acquired enough information to determine whether the employee’s request qualifies for CFRA leave, the City will provide the employee with a written Designation Notice.
1. Designating Leave as CFRA -Qualifying: If the leave is designated as being CFRA-qualifying, the Designation Notice will contain, but is not limited to, the following information:
a. A statement that the leave is being designated as CFRA leave;
b. The amount of leave being counted as CFRA leave, if known;
c. Whether accrued paid leave will be used during the leave, and that any paid leave used will count as CFRA leave;
d. Whether a medical certification or recertification will be required to release the employee to return to work; and
e. Whether a job description or description of essential duties is attached to the Designation Notice for the health care provider to use in completing the medical certification or recertification to release the employee to return to work.
2. Unable to Designa te: If the City is unable to determine whether the leave requested is CFRA-qualifying because more information is needed, the employee will be informed that
a. The medical certification is incomplete or insufficient, and the City will provide a list of deficiencies and explain the employee’s opportunity to cure said deficiencies; or
b. A second or third medical opinion is being required.
3. Not Designating Leave as CFRA-Qualifying: If the City has determined that the employee’s leave does not qualify as CFRA leave, or that employee has exhausted the 12-week CFRA entitlement, the City will notify the employee in writing that the leave is not being designated as CFRA leave, and the reason for the denial.
P. Employment Benefits and Protection:
1. Previously Accrued Benefits and Seniority Status:
a. Leave under the CFRA will not result in the loss of any employment benefits accrued before the date the leave commenced.
b. Leave under the CFRA w ill not constitute a break in service or otherwise cause the employee to lose longevity or seniority, even if other paid or unpaid leave constitutes a break in service for purposes of establishing longevity or seniority, or for layoff, recall, promotion, j ob assignment, or seniority-related benefits.
2. No Accrual of Leave or Seniority during Unpaid CFRA Leave:
a. An employee on unpaid CFRA leave shall not accrue any additional paid leave time. Thus, employees will not accrue vacation leave, sick leave , management leave, nor will they be paid for holidays during the unpaid leave.
b. The time off on unpaid CFRA leave shall not count as time worked for purposes of establishing additional seniority for purposes of layoff, recall, promotion, job assignment, and other seniority-related benefits.
c. However, during the time that an employee supplements the employee’s unpaid CFRA leave with paid leave, the employee will continue to accrue leaves and benefits in accordance with the provisions of the City’s policy governing those leaves of absence (i.e., when coordinating with sick leave, the rules governing sick leave will apply with regard to the employee’s benefits).
3. Maintenance of Health Insurance of the Employee: Employees will continue to receive the same medical benefits while on CFRA leave for up to 12 workweeks , or longer depending on the basis for the qualifying leave, in a 12 -month period.
The City shall be responsible for the continued payment of the City’s share of the cost of the employee’s health benefits during th e leave period. Benefits for absences beyond the allotted period will be handled in the same manner as benefits for employees on any other type of unpaid leave of absence. An employee who notifies the City that the employee does not intend to return to work from the CFRA leave is not entitled to medical benefits provided by the City as if the employee were on a CFRA leave and instead is entitled to the benefits provided to employees who are on an unpaid leave of absence for any other reason.
4. Maintenance of Benefits Requiring Employee Contributions:
a. During any period of unpaid leave, unless otherwise prohibited by applicable law, an employee may elect to discontinue health insurance coverage for the employee, a spouse, registered domestic partner, and/or any dependent(s) as well as any other benefits offered or sponsored by the City to which the employee is required to make monthly contributions.
Employees must notify the City in writing of such an election.
b. An employee will continue to be responsible for making the payment of monthly contributions for which the City has not received advanced notice of election to discontinue. If any premium amounts are increased or decreased for other employees similarly situated, the employee will be required to pay the new premium rates.
c. All monthly contributions are due and payable to the City at the same time as they would be if made through payroll deduction.
d. If any monthly contributions are not received within 30 days of their due date, the City has the option to either discontinue said benefit(s) or continue said benefit(s) by making the monthly contributions on the employee’s behalf.
e. Upon the employee’s return to work, the City is entitled to seek reimbursement from the employee for the employee’s share of any monthly contributions made on the employee’s behalf.
f. Employees included in a pension or retirement plan may continue to make contributions in accordance with the terms of the plan during the period of leave. However, the City shall not be required to make plan payments for employees during the leave period which is unpaid, and the unpaid leave period shall not be counted for purposes of time accrued under the plan.
g. If the City provides a new health plan or benefits or changes health plans or benefits while an employee is on CFRA l eave, the City will give written notice to the employee to advise that the employee is subject to the new or changed plan/benefits in the same manner, and to the same extent, as if the employee were not on leave.
5. Failure to Return from Leave: The City may recover the entire premium it paid for maintaining health insurance benefits for an employee during any period of unpaid leave if the employee fails to return to work promptly upon the expiration of a leave for a reason other than the continuation, re currence or onset of a serious health condition that entitles the employee to leave or other circumstances beyond the employee’s control.
Q. Reinstatement:
1. Restoration to Position: When an employee returns from a leave under the CFRA, the employee will be restored to the position held when the leave began, or to a comparable position, with equivalent (i.e. virtually identical) employment benefits, pay, and other conditions of employment.
The duties of the position must be capable of being performed in the same or similar geographic location, and involve the same or substantially similar duties as the position held when leave began, with responsibil ities that entail substantially equivalent skill, effort, responsibility.
2. Denial of Restoration Rights: The City may refuse to reinstate an employee to the employee’s pre-leave position at the conclusion of a CFRA leave when the employee’s position and any comparable p osition have ceased to exist because of legitimate business reasons unrelated to the employee’s CFRA leave. In this case, the City shall reasonably accommodate the employee through alternative means that will not cause undue hardship to the City’s operation. The City may
offer the employee any other position that is available and suitable. The City is not required to create new employment that would not otherwise be created, discharge or transfer another employee, or promote another employee who is not q ualified to perform the job.
3. Opportunity to Fulfill Missed Requirements: If an employee is unable to attend a necessary course, renew a license, or is otherwise adversely affected in terms of fulfilling minimum requirements or qualifications for the position as a result of the CFRA leave the employee will be given a reasonable opportunity to fulfill those requirements or qualifications upon returning to work from CFRA leave.
4. Accommodation Upon Returning from Leave: Nothing in this section prevent s the City from accommodating an employee’s request for any change in shifts, schedule, position, or geographic location. Similarly, nothing in this section prohibits the City from offering a promotion to a better position, or from providing a reasonable accommodation pursuant to its obligations under the Americans with Disabilities Act and the Fair Employment and Housing Act.
IV. PREGNANCY DISABILITY LEAVE OR TRANSFER.
A. Eligibility and Duration:
1. Eligibility:
a. Any employee who is disabled on account of pregnancy, childbirth, or related medical conditions may take a pregnancy -related disability leave, regardless of the number of hours worked or her length of employment with the City.
b. An employee’s pregnancy-related disability is not considered a serious health condition under the CFRA and is not counted against an employee’s CFRA leave eligibility.
2. Amount of Leave Entitlement: An eligible employee may take a pregnancy - related disability leave for the period of disability, up to four months (an equivalent of 17 1/3 weeks). An employee is entitled to take off the number of days or hours that the employee would normally work during 17 1/3 weeks of employment. For example, an employee, who regular ly works 40 hours per week is entitled to take 693 hours of leave, and an employee who regularly works 20 hours per week, would be entitled to 346.5 hours of leave.
3. Temporary Transfer: Any employee affected by conditions related to pregnancy, childbirth, or related medical conditions is entitled to transfer temporarily to a less strenuous or hazardous position or to less strenuous or hazardous duties upon the certification of the employee’s health care provider that the transfer is medically advisable, if the transfer can be reasonably accommodated.
4. Reasonable Accommodation: The City will provide reasonable accommodation to an employee who is affected by pregnancy, childbirth or related medical conditions as required by law.
B. Use of Accrued Leave : An employee taking pregnancy -related disability leave must coordinate any available sick leave with her pregnancy -related disability leave. An employee taking pregnancy-related disability leave may, at her option, coordinate any other accumulated paid leaves, including, but not limited to, vacation time, holiday pay, compensatory time off, or management leave with her pregnancy -related disability leave.
The paid leave shall run concurrently with the pregnancy-related disability leave, and shall not extend the employee’s entitlement to pregnancy -related disability leave beyond the amount specified in Section IV.A.2 of this Policy.
C. Notice: An employee should notify her supervisor of her need for pregnancy -related disability leave or transfer as soon as she is aware of the need for such leave.
1. Foreseeable Events: Where the need for pregnancy -related disability leave or transfer is foreseeable, the employee must provide at least 30 days’ advance notice to the City of the need for pregnancy -related disability leave or transfer. If the leave or transfer is required in connection with any planned, non -emergency medical treatment or supervision, the employee shall consult with the City and make a reasonable effort to schedule any such planned medical treatment or supervision to minimize disruption to the City’s operations, subject to the approval of the health care provider of the employee.
2. Unforeseeable Events: For non-emergency events that are not foreseeable 30 days in advance, or when 30 days’ advance notice is not practicable, the employee must notify the City as soon as practicable under the circumstances, ordinarily within two business days after the employee learns of the need for leave.
3. Notice of Intermittent Leave: In the event that an employee requires intermittent pregnancy-related disability leave, she shall notify the City of the anticipated dates for the absences as much in advance as possible.
4. Failure to Provide Notice: If the employee fails to provide the requisite 30 -day advance notice for foreseeable events without any reasonable excuse for the delay, the City reserves the right to delay the employee’s right to take the CFRA leave for up to 30 days after the date the employee provides notice of the need for pregnancy-related disability leave or transfer ; provided, however, that the delay would not endanger the employee’s health, pregnancy, or health of the employee’s co-workers.
D. Contents of Notice or Request for Extension:
1. All requests for pregnancy -related disability leave or transfer should include the anticipated timing and duration of the leave or transfer and be sufficient to make the City aware that the employee requires a pregnancy -related disability leave or transfer. Any requests for extensions of a pregnancy -related disability leave or transfer must be received at least five business days before the date on which the employee was originally scheduled to return to work, where practicable, and must include the revise d anticipated date(s) and duration of the pregnancy -related disability leave or transfer.
2. If the employee has exhausted her leave entitlement under Section IV.A.2., the City will evaluate on a case -by-case basis whether additional leave may be available as a reasonable accommodation; however, any such additional leave shall not be subject to the provisions of this Section IV.
E. Intermittent or Reduced Schedule Leave : Pregnancy -related disability leave can be taken on an intermittent or on a reduced s chedule basis when medically advisable, as determined by the employee’s health care provider. The minimum pregnancy -related disability leave increment that can be taken by an employee is fifteen minutes. If pregnancy-related disability is taken on an intermittent or reduced schedule basis and it is foreseeable based on planned medical treatment because of pregnancy, the City retains the discretion to temporarily transfer the employee to an alternative position, for which the
employee is qualified, with eq uivalent pay and benefits, which better accommodates the employee’s leave schedule, but need not have equivalent duties.
F. City Response to a Request for Pregnancy -Related Disability Leave or Transfer or Request for Extension : Within five business days of an employee’s request for pregnancy-related disability leave or transfer, the City shall provide the employee with a written Eligibility Notice, which shall conform to the provisions of Section III.M . The Eligibility Notice shall also inform the employee of her additional rights under the California PDL. If the employee has exhausted her leave entitlement under Section IV.A.2., the City will advise whether additional leave will be granted as a reasonable accommodation; however, any such additional leave shall not be subject to the provisions of this Section IV.
G. Medical Certification:
1. Timing of Certification: Any request for pregnancy -related disability leave or transfer must be supported by a medical certification from a health care provider.
a. For foreseeable pregnancy -related disability leaves or transfers, employees will provide the required medical certification before the leave/transfer begins. When this is not possible, employees must provide the required certification within 15 days, unless it is not practicable under the circumstances to do so. Failure to provide the required medical certification may result in the denial or delay of foreseeable pregnancy - related disability leaves or transfers until such certification is provided.
b. In the case of unforeseeable leaves, failure to provide the required medical certification within 15 days of being requested to do so may result in a denial of the employee’s continued leave until certification is eventually provided. Any request for an extension of the leave/transfer must also be supported by an updated certification.
2. Contents of the Certification for Pregnancy -Related Leave: Employees are encouraged to use the City’s medical certification when requesting pregnancy- related disability leave to ensure that all pertinent information is obtained. The following information must be included: (1) date the employee became or will become disabled due to pregnancy; (2) the probable duration of the period or periods of disability; and (3) an explanatory statement that, due to the disability, the employee is unable to work at all or is unable to perform any one or more of the essential functions of her position without undue risk to herself, to the successful completion of her pregnancy, or to other persons.
3. Contents of the Certification for Pregnancy -Related Transfers: Employees are encouraged to use the City’s medical certification when requesting pregnancy- related disability transfer to ensure that all pertinent information is obtained. The medical certification for pregnancy -related transfer shall include: (1) a description of the requested transfer or reasonable accommodation; (2) the date the need for the transfer or reasonable accommodation became medically advisable; (3) the probable duration of the need for the transfer or reasonable accommodation; and (4) an explanatory statement that, due to the disability, the transfer or reasonable accommodation is medically advisable.
4. No Second/Third Opinions Allowed: There will not be a second or third opinion regarding pregnancy-related disability leave or transfer.
5. Return to Work Certification: As a condition of restoration to her former position, an employee taking leave under the PDL is required to provide the City with
certification from her health care provider stating that she is able to resume her original job duties.
H. City’s Designation of Leave : Once an employee requests pregnancy -related disability leave or transfer, Talent Attraction and Development shall notify the employee in writing whether the requested leave or transfer is approved and qualifies as pregnancy -related disability leave or transfer. This designation shall comply with the provisions of Section III.O., and shall also inform the employee of any additional rights and obligations under the California Pregnancy Disability Leave Law.
I. Employment and Benefits Protection : The provisions set f orth in Section III. P. of this Policy regarding employment and b enefits protection in connection with CFRA leave also apply to all pregnancy-related disability leaves, except that where the City's policy permits employees on paid leave and/or unpaid leave to accrue seniority, employees on paid and/or unpaid pregnancy-related disability leaves shall also accrue seniority.
J. Reinstatement: Upon the completion of the employee’s pregnancy-related disability leave or transfer period, and upon submission of the return to work notice, the employee shall be returned to the same position she previously held, or to a comparable position as permitted by law. However, for pregnancy -related disabilities, there is no reinstatement exception for key employees.
V. MILITARY EXIGENCY LEAVE.
The CFRA provides for military exigency leave. The City permits employees who have a covered military family member in the Armed Forces (including the National Guard or Reserves) to take up to twelve workweeks of CFRA leave due to a qualifying exigency resulting from the covered military family member’s active military duty (or call to active duty status) in support of a contingency operation.
1. Definitions:
a. Armed Forces: The Army, Navy, Air Force, Marine Corps, or Coast Guard, including the National Guard and Reserves.
b. Covered Active Duty or Call to Active-Duty Status: One of the following:
i. For a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; or
ii. For a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a federal call or order to acti ve duty in support of a contingency operation under a provision of law referred to in section 101(a)(13)(B) of Title 10, United States Code.
c. Covered Military Family Member: An employee may take leave under CFRA for the employee’s spouse, domestic partner, child or a parent who is a member of the Armed Forces and is on Covered Active Duty or Call to Active Duty Status.
d. Covered Military Family Member's Child: The biological, adopted, or foster child, stepchild, legal ward, or child for whom the Mil itary Family
Member stands in loco parentis, within the meaning of Section III.D. of this Policy, who is either under the age of 18 or who is aged 18 or older but incapable of self-care because of a physical or mental disability at the time leave under this Section V.A. is to commence.
e. Covered Military Family Member's Parent: The biological, adoptive, step, or foster father or mother, or an individual who stood in loco parentis, within the meaning of Section III.D. of this Policy, to a Covered Military Family Member who was under 18 years of age.
2. Qualifying Reasons for Military Exigency Leave: Military exigency leave can be taken for the following non-medical, non-routine activities only:
a. Short-Notice Deployment Activities: If a Cover ed Military Family Member receives seven or less calendar days’ notice prior to the date of deployment, an employee may take CFRA leave to address any issue arising from an impending call or order to active duty in support of a contingency operation. The employee may take CFRA leave for up to seven days beginning on the date the Covered Military Family Member receives the notice of impending call or order to active duty.
b. Military Events and Related Activities: An employee may take CFRA leave to attend any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status of the Covered Military Family Member. An employee may also take CFRA leave to attend family support or assistance program s and informational briefings sponsored or promoted by the military, military service organizations, or American Red Cross that are related to the active duty or call to active duty status of a Covered Military Family Member.
c. Childcare and School Activ ities: An employee may take CFRA leave for the following reasons, if the reason is necessitated by the Covered Military Family Member’s active duty or call to active duty status, or circumstances arising from it:
i. To make alternative childcare arrangements of a Covered Military Family Member’s Child;
ii. To provide childcare for a Covered Military Family Member’s Child on an urgent, immediate need basis, but not on a regular, routine, or everyday basis;
iii. To enroll in or transfer a Covered Military Family Member’s Child in a new school or day care facility; and/or
iv. To attend meetings with staff at a school or day care facility, such as regarding disciplinary measures, parent -teacher conferences, or meetings with school counselors, for a Covered Military Family Member's Child.
d. Financial and Legal Arrangements: An employee may take CFRA leave in order to make or update financial or legal arrangements to address the Covered Military Family Member’s absence while on active duty or call t o active duty status; and/or to act as the Covered Military Family Member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the
Covered Military Family Member is on active duty or call to active duty status (up to a period of 90 days following the termination of the Covered Military Family Member’s active duty status).
e. Counseling Activities: An employee may take CFRA leave to attend counseling, provided that:
i. The need for counseling arises from the Covered Military Family Member’s active duty or call to active duty;
ii. Such counseling is provided by someone other than a health care provider; and
iii. The counseling is for the employee, the Covered Military Family Member, and/or the Covered Military Family Member’s Child. (Note that if medical counseling is needed due to a serious health condition, the employee may be able to take CFRA leave under Section III instead.)
f. Rest and Recuperation Activities: If a military member is granted short- term, temporary, rest and recuperation leave during the period of deployment, an employee may take CFRA leave to spend time with the military member. An employee may take CFRA leave for this purpose for up to fifteen calendar days for each instance of rest and recuperation, beginning on the date the Covered Military Family Member commences each instance of rest and recuperation leave.
g. Post-Deployment Activities: An employee may t ake CFRA leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following termination of the Covered Military Family Member’s active duty stat us. An employee may also take CFRA leave to address issues that arise from the death of a Covered Military Family Member while on active duty status, such as meeting and recovering the body of, making funeral arrangements for, or attending funeral services fo r the Covered Military Family Member.
h. Parental Care: An employee may take CFRA leave for care of a Covered Military Family Member's Parent who is incapable of self-care.
i. "Incapable of self-care" means that the individual requires active assistance to provide daily self -care in three or more of the following activities: caring appropriately for one's grooming and hygiene; bathing; dressing; eating; cooking; cleaning; shopping; taking public transportation; paying bills; maintaining a residence; using telephones and directories; using a post office; or other activities or instrumental activities of daily living.
ii. An employee may take parental care leave for the following purposes when the need arises from the covered active duty or call to active duty of the Covered Military Family Member:
A. To arrange for alternative care of the Covered Military Family Member's Parent from the existing care
arrangement;
B. To provide care for the Covered Military Family Member's Parent on an urgent, imme diate need basis (as opposed
to a routine, regular, or everyday basis);
C. To admit to or transfer to a care facility the Covered Military Family Member's Parent; or
D. To attend meetings with staff at a care facility, such as meetings with hospice or so cial service workers, that are not regular or routine.
i. Additional Activities: An employee may take CFRA leave for another form of exigency, provided that:
i. The reason for the leave arises out of the Covered Military Family Member’s active duty or call to active duty;
ii. The City and the employee mutually agree that such leave shall be considered taken for a qualifying exigency; and
iii. The City and employee mutually agree on the timing and duration of the leave.
3. Employee Notice of Need for Military Exigency Leave.
a. Timing of Notice: Employees are required to give notice of the need for military exigency leave as soon as practicable under the circumstances.
b. Content of Notice: Employees are required to provide the City with sufficient information, depending on the situation, to notify the City as to the anticipated timing and duration of the leave, that a Covered Military Family Member is on active duty or call to active duty status, and that one of the qualifying exigencies in Section V.2. is present.
c. Updates from Employee: The employee is required to advise the City as soon as is practicable when the dates of leave or other circumstances change.
4. City Response to Notice of Need for Military Exigency Leave: The City will request any additional, necessary information needed to process the employee’s request and will also follow the procedures set forth under Section III of this Policy in responding to an employee’s notice that employee has a need for military exigency leave.
5. Certification of Need for Military Exigency Leave: The City will request certification of the employee’s need for military exigency leave when it provides notice under Section III., and will provide the employee with a form to complete or an explanation of the information needed. Employees requesting military exigency leave for the first time for a particular active duty or call to active duty are also required to provide the City with a copy of the military member’s active duty orders.
a. Required Information for Certification:
i. A signed statement or description by the employee of the facts supporting the request for leave for one or more of the r easons set forth in Section V.2 and any available supporting written
documentation, including, but not limited to, meeting
announcements, appointment confirmations, or a copy of a bill for services.
ii. The approximate date on which the reason for the leave commenced, or will commence.
iii. The applicable timeframe.
A. If for a single, continuous period of time, the beginning and end dates for the employee's absence from work;
B. If on an intermittent or reduced schedule basis, the estimated frequency and duration of the employee' s
absences.
iv. For leave involving a meeting with a third party, appropriate contact information for the individual or entity, such as name, title, organization, address, telephone number, fax number, and email address, as well as a brief description of the purpose of the meeting.
v. For leave involving rest and recuperation activities, a copy of the Covered Military Family Member's Rest and Recuperation orders, or other documentation issued by the military indicating that the Covered Mili tary Family Member has been granted Rest and Recuperation leave and identifying the dates of that Rest and Recuperation leave.
b. Timing of City’s Notice of Required Certification: The City will request the certification in accordance with the timeframes set forth in Section III.N. of this Policy.
c. Insufficient or Incomplete Certification: Employees are required to provide a complete and sufficient certification. If an employee provides an incomplete or insufficient certification, the City will give the employee written notice of the deficiencies and seven calendar days to cure the deficiencies, unless seven days is not practicable, despite the employee’s diligent, good faith efforts. The employee’s leave may be denied if the employee fails to provide timely a required certification.
d. Verification of Certification: The City may verify the employee’s certification by contacting the appropriate Department of Defense unit to verify the military member is on active duty or call to active duty status. If the exigency involves meeting with a third party, the City may contact the entity or individual with whom the employee is meeting to verify the meeting or appointment schedule and the nature of the meeting. The City will not request additional information. No permission from the employee is required for such verification.
VI. EMPLOYEE RESPONSIBILITIES AND DUTY TO COOPERATE
Employees are expected to fully cooperate with the City in meeting the obligations and requirements set forth under this Policy, as well as those set forth in state law. An employee’s cooperation includes, but is not limited to, timely completion of all requested forms and responding to all inquiries for addi tional information. Cooperation also requires that an employee respond to the City’s inquiries for information to determine whether the employee is requesting leave under the CFRA or PDL. Employees are also required to consult with the City and make a re asonable effort to schedule foreseeable treatments so as to not unduly disrupt the City’s operations.
Employees on family care or medical leave will respond to the City’s reasonable inquiries and keep the City updated as to the status of the employee’s family care or medical leave.
Failure to cooperate with the City or failure to meet the employee’s responsibilities may result in a delay in granting the employee’s leave, a denial of leave, and/or a denial of the protectio ns and benefits afforded by CFRA or PDL. Employees who have questions about their responsib ilities under this Policy will direct their inquiries to Talent Attraction and Development.
1 CITY OF WILDOMAR
NOTICE OF ELIGIBILITY AND RIGHTS & RESPONSIBILITIES –
NON-PREGNANCY-RELATED LEAVE
(CALIFORNIA FAMILY RIGHTS ACT)
[Part A – NOTICE OF ELIGIBILITY]
TO:
Employee
FROM:
Name of Employer Representative
DATE:
On _____________, you informed us _______ and/or provided us with a note from ___________________dated ________ specifying that __________________. Based on this information the City understands that you may be unable to work due to:
The birth of a child, or placement of a child with you for adoption or foster care; Your own serious health condition;
Time during which you are needed to care for your spouse; domestic partner; minor child; adult child; child of domestic partner; parent or parent -in- law, sibling, grandparent, grandchild due to their serious health condition.
A qualifying exigency arising out of the fact that your spouse/domestic partner; son or daughter; parent is on active duty or call to active duty status in support of a contingency operation as a member of the National Guard or Reserves.
Time during which you are needed to care for your spouse; son or daughter; parent; or next of kin who is a covered servicemember with a serious injury or illness.
Depending on the circumstances, your leave may qualify for CFRA.
This Notice is to inform you that you:
Are eligible for CFRA leave (see Part B below for Rights and Responsibilities).
Are not eligible for CFRA leave, because (only one reason need be checked, although you may not be eligible for other reasons):
You have not met the CFRA's 12 -month length of service requirement. As of the first date of requested leave, you will have worked approximately months towards this requirement.
You have not met the CFRA’s 1,250 -hours-worked requirement. As of the first date of requested leave, you will have worked approximately hours towards this requirement.
[PART B-RIGHTS AND RESPONSIBILITIES FOR TAKING CFRA LEAVE] As explained in Part A, you meet the eligibility requirements for taking CFRA leave. However, in order for us to determine whether your absence qualifies as CFRA leave we request the following information (only checked blanks apply):
Sufficient certification to support your request for CFRA leave. A certification form that sets forth the information necessary to support your request is enclosed.
Sufficient documentation to establish the required relationship between you and your family member.
Other information needed:
___ No additional information requested
You must provide any requested information to HR Administrator Sherri Stanton by____________.
Once we obtain the information specified above, we will inform you, within 5 business days, whether your leave is approved, and if approved, whether it will be designated as CFRA leave, and count towards your CFRA leave entitlement. If sufficient information is not provided in a timely manner, your leave may b e delayed or denied.
2 If we determine that your requested leave qualifies as CFRA leave, you will have the following responsibilities in connection with your CFRA leave (only checked blanks apply):
You will be required to contact Sherri Stanton at (951) 677-7751 ext. 240 to make arrangements to continue to make your share of the premium payments on your health insurance benefits while you are on leave. You have a minimum 30-day grace period in which to make premium payments. If payment is not made timely, your group health insurance may be cancelled, provided we notify you in writing at least 15 days before the date that your health coverage will lapse, or, at our option, we may pay your share of the premiums during CFRA leave and recover these payments from you upon your return to work.
You will be required to use your availa ble sick _ __ vacation ___ banked holiday __ floating holiday ___ management leave __ other(s) __ during your CFRA absence. This means that you will receive your paid leave and the leave will also be considered protected CFRA leave and counted against your CFRA leave entitlement.
While on leave you will be required to furnish us with periodic reports of your status and intent to return to work every .
If the circumstances of your leave change, and you are able to return to work earlier than the date indicated in Part A, you will be required to notify HR Administrator Sherri Stanton at (951) 677-7751 ext. 240 at least two workdays prior to the date you intend to report for work.
If we determine that your leave qualifies as CFRA leave you will have the following rights while on CFRA leave:
• You have a right under the CFRA for up to 12 weeks of unpaid leave in a 12 -month period calculated as a “rolling” 12-month period measured backward from the date of any CFRA leave usage.
When medically necessary, leave may be taken on an intermittent or a reduced work schedule. If you are taking a leave for the birth, adoption or foster care placement of a child, the basic minimum duration of the leave is two weeks, and you must conclude the leave within one year of the birth or placement for adoption or foster care. • Your health benefits must be maintained during any period of unpaid CFRA leave under the same conditions as if you continued to work.
• Except as otherwise provided by Section III.Q of the Policy, you must be reinstated to the same or an equivalent job with the same pay, benefits, and terms and conditions of employment on your return from CFRA-protected leave. (If your leave extends beyond the end of your CFRA entitlement, you do not have return rights under CFRA.) • If you do not return to work following CFRA leave for a reason other than: 1) the continuation, recurrence, or onset of a serious health condition which would entitle you to CFRA leave; or 2) other circumstances beyond your control, you may be required to reimburse us for our share of health insurance premiums paid on your behalf during your CFRA leave.
• If we have not identified as a "responsibility" above that you must use accrued paid leave while taking your unpaid CFRA leave entitlement, you may choose to have sick ___ vacation ___ banked holiday ___ floating holiday ___ management leave ___ other(s) _______run concurrently with your unpaid leave entitlement, provided you meet any applicable requirements of the leave policy. If you do not m eet the requirements for taking paid leave, you remain entitled to take unpaid CFRA leave.
For a copy of conditions applicable to sick/vacation/other leave usage please refer to available at: .
Applicable conditions for use of paid leave:
IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT SHERRI STANTON AT (951) 677-7751 EXT. 240.